The Conventional Wisdom -

Earlier this year, prior to the oral arguments before the United States Supreme Court (the “Court”) in National Federation of Business, et al. v. Sebelius ( “National Federation” case), 132 S.Ct. 2566 (2012), I gave a talk to a business group on the likely outcome of the National Federation case. In National Federation, the petitioner challenged the constitutionality of the Patient Protection and Affordable Care Act (the “Affordable Care Act”), in which Congress reformed the national market for healthcare products and services. Like many of my fellow bar members, I wanted to handicap the case, which had been the subject of an inordinate amount of publicity. If you believed the hue and cry, the case represented the “death” (pun intended) of the Republic and the establishment of socialism, tyranny, and totalitarianism. The heart of the challenge to the Affordable Care Act was an objection to its “individual mandate,” which compels an individual to purchase health insurance on pain of financial penalty.

I prepared for my talk by reviewing all the federal circuit Court of Appeals cases that had ruled on the constitutionality of the Affordable Care Act, focusing specifically on their treatment of the individual mandate. I must admit that at the beginning of this exercise, I was predisposed to the conclusion that the legislation would be upheld under the Commerce Clause of the United States Constitution, U.S. Const. art. I, §8, cl. 3 (“Commerce Clause”), for the following reasons: First, an appellate court, generally, must give great deference when reviewing the constitutionality of legislation. See generally National Federation 132 S. Ct. at 2593. This rule of construction gives appropriate deference to the voice of the people, which is most directly expressed by the legislature and, for the most part, leaves the appellate court in the position of an umpire who rules based on established rules in the process, with minimum leverage to judicially legislate new rules. See generally Senate Hearings 109- 158, Hearings on the Nomination of John G. Roberts to be Chief Justice of the Supreme Court of the United States, 109th Cong. (Sept. 2005). Second, I found it inconceivable that the legislative history and related legislative fact-finding accompanying the enactment of the Affordable Care Act would not make the requisite connection between the individual mandate, its effect on the national health care market, and its subsequent effect on interstate commerce. Third and finally, while not a constitutional law expert, I knew that with the demise of Lochner v. New York, 198 U.S. 45 (1905), as established in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), the United States Supreme Court had gotten out of the business of invalidating Congressional legislation regulating business (i.e., non-economic interests) on the basis of a violation of substantive due process and, by analogy, the Commerce Clause. See generally United States vs. Lopez, 514 U.S. 549, 603 (1995) (Souter, J.) (dissenting, discussing the relationship between substantive due process and the Commerce Clause).