What is at stake in the case challenging the constitutionality of the
Affordable Care Act (ACA), scheduled for oral argument in the Supreme
Court in March? The challengers maintain that the case is about
fundamental liberty, specifically our freedom not to be compelled to
purchase things we don’t want. But that frame, while undoubtedly
appealing to the radical libertarian strain in the Tea Party, is
misleading. In fact, the only “liberty” that would be protected by a
victory for the challengers is the freedom of insurance companies to
discriminate against sick people.
The case is principally focused on the “individual mandate,” the
law’s requirement that people who are not insured and can afford health
insurance must buy it or pay a tax penalty. The federal government is a
government of limited powers, and although Congress has the power to
regulate interstate commerce, the challengers concede, if it can force
people to “enter into commerce” in order to regulate them, then its
powers are in effect unlimited. The reason Congress has never imposed
such a mandate, they maintain, is that the power does not properly
exist.
The Supreme Court deems the issue sufficiently serious to schedule an
almost unprecedented five and a half hours of oral argument (it usually
schedules a single hour). But the argument against the law is
remarkably flimsy.
