Julio Gonzalez, M.D., J.D.
In 2012, the Supreme Court delivered one of its most vexing opinions in National Federation of Independent Business v. Sebelius. The case, challenging the constitutionality of the Affordable Care Act, is still the most highly discussed and scrutinized Supreme Court case of the twenty-first century. Its impact upon the nation is massive because it took an unconstitutional act on the part of Congress and ruled it constitutional. And now, the renewed question of the Affordable Care Act's constitutionality is making its way up through the judiciary in Texas v. California, a case available for your review in the Library. And once again, the answer is that the Affordable Care Act is unconstitutional.
The foundation for the Affordable Care Act is the creation of a mandatory healthcare market for health insurance in which all must participate. The marketplace includes a set of product options, defined by the government, one of which must be purchased by each individual. If an individual fails to purchase a certain product, then he or she must pay a tax. Incidentally, the individual may not escape the tax by purchasing a similar product that does not meet the criteria laid out by the government.
Any unbiased observer with a basic understanding of constitutional law would agree that Congress, a body of certain, specific and enumerated powers, was never given the authority to force the public into buying a product it does not wish to buy. The Constitution does not say, for example, "Congress shall have the power to design, implement, and enforce participation in a health care system."
Some argue that the Interstate Commerce Clause gives Congress such authority. But in order to do so, the Constitution would have to give Congress the authority to force nonparticipants' participation in the marketplace against their will, something the ICC still does not allow Congress to do.
So how did the Affordable Care Act pass constitutional muster? Quite simply, in NFIB, Chief Justice John Roberts said the authority lay in Congress's taxation powers. To Roberts, the Act was not forcing people's participation in the marketplace with a penalty for those failing to participate. Rather, the Act was implementing a taxation scheme that would tax those who voluntarily chose not to be insured. The interpretation was a novel one indeed and allowed a law that would have never been conceived by the Framers as falling within the enumerated powers to stand.
Then, in 2017, Congress passed the Tax Cuts and Jobs Act where it removed the penalty, or tax, from the Affordable Care Act. The result is a law that sets up a marketplace of health insurance products without its associated taxation or penalty components. After the TCJA, all of the mandates remain in the Affordable Care Act, but gone is any associated taxation overlay. Thus, now we have an Act, passed by Congress, that purely forces an individual's participation in a marketplace when there is no nexus with taxation policy.
Constitutionally, this new arrangement forces the courts to answer the question of the law's constitutionality based solely on the Congress's Interstate Commerce Clause authority. In the case of the United States District Court for the Northern District of Texas, the answer is that Congress does not possess such authority under the Constitution and that the Interstate Commerce Clause will not allow it to claim it.
Admittedly, the question before the courts is an awkward one because now they are forced to decide whether a law the Supreme Court had previously ruled constitutional is still so when a part of it is removed. The reason for this awkwardness is that despite Chief Justice Roberts' inventions, the Affordable Care Act was never constitutional. The Affordable Care Act was never a tax; it was a healthcare scheme divined by Congress into which people were forced to participate through the power of a penalty.
Texas v. California will absolutely be sent up to the circuit courts and likely appear at the doorstep of the Supreme Court. Let us hope this time, Chief Justice Roberts gets it right.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and served in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.
Julio Gonzalez, M.D., J.D.
Dr. Gonzalez is an orthopedic surgeon and lawyer who served as State Representative for South Sarasota County in Florida for four years. He is the author of Heathcare Reform: The Truth, The Federalist Pages, and The Case for Free Market Healthcare.