Category Archives: John G. Robers

Individuals, Aggregates, and the Affordable Care Act

Supreme Court Chief Justice John G. Roberts

Today was a big day at the Supreme Court, which has just issued its ruling on Obamacare. For those who are interested, you can get a transcript of the court’s opinion here.

Needless to say, the case has attracted a lot of attention. But I’d like to bring one issue to the fore that, to my mind, has not received enough attention. 

One way to think about the polarized debate regarding the Affordable Care Act is that it pits the individual against the community. Proponents of the law see it as an attempt to fix the health care system as a whole. They worry that our premiums are too high, that Medicare is on a fast track to insolvency, and that insurance companies refuse to cover pre-existing conditions. Critics, on the other hand, tend to dwell on what it will mean for individual consumers of health care. They worry about limiting individual care, that bureaucrats will get in between doctors and their patients, and that I will have to pay for my neighbor’s unhealthy lifestyle.

There’s a way in which this very basic dynamic plays itself out in today’s Supreme Court decision as well.


As most of you have probably heard, John G. Roberts joined a liberal majority in upholding the law. In his opinion, however, Roberts argued the individual mandate (which requires virtually all Americans to obtain health insurance) does not fall under Congress’ power to regulate interstate commerce. Rather, it is only constitutional if we construe it as a tax. On p. 32, he reasoned that

“Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.”

Why does the individual mandate not fall under Congress’ power to regulate interstate commerce?  Roberts’ argument has to do with the word “regulate.” 

According to Roberts, congress can REGULATE the behavior of people engaged in interstate commerce, or engaged in activities that have an impact on interstate commerce, but it cannot COMPEL people to engage in commercial activities. Moreover, the refusal to purchase insurance is not a commercial activity, rather it is the absence of a commercial activity. Drawing on an analogy that has been bandied about a lot lately, Roberts concludes that Congress cannot compel people to purchase insurance just as it cannot compel people to eat broccoli, even though doing so clearly has individual and public health benefits.

What I want to focus here is an extremely striking admission that Roberts makes on p. 24 of his opinion:

“To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers.”

I found this one of the most interesting passages in the whole ruling. Is Roberts basically saying that if you think about it hard enough — if you take a philosophical perspective — a refusal to engage in commercial activity is itself a kind of commercial activity?  But that the people who wrote the constitution did not think through the issue in such a thoroughgoing way, and therefore we ought not to do so either?

Not quite, obviously.  But many still feel that Roberts’ opinion is willfully obtuse.  As Ruth Bader Ginsburg (joined by Sotomayor, Breyer, and Kagan) argues in her concurring dissent, the Affordable Care Act does not actually compel anyone to join the market for health care.  That’s because people are already in that market, whether they like it or not.

Here’s the most interesting part of Ginsberg’s argument with Roberts:

“THE CHIEF JUSTICE does not dispute that all U. S. residents participate in the market for health services over the course of their lives. But, THE CHIEF JUSTICE insists, the uninsured cannot be considered active in the market for health care, because “[t]he proximity and degree of connection between the [uninsured today] and [their] subsequent commercial activity is too lacking.”

And she continues,

“This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or doctor’s office each year. Nearly 90% will within five years. An uninsured’s consumption of health care is thus quite proximate: It is virtually certain to occur in the next five years and more likely than not to occur this year.”

There is something very significant, I think, about the fact that Ginsburg argues in terms of percentages whereas Roberts argues about the difference between regulation and compulsion.  Percentages are about aggregates — communities — whereas Roberts’ distinction is about individual freedom.

If we think about commerce as behavior in which individuals can choose to engage, then Roberts’ distinction between activity and inactivity makes some sense.  There really is a difference between regulating someone’s commercial activities and compelling them to engage in commerce.  But if we think about the issue at a higher level — that of the community, or of an entire economy — the distinction looses most of its traction. 

Roberts is no fool, and he recognized this point.  I think that’s what he meant when he admitted that “To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce.”  Which is why I found his statement about the framers being “practical men” rather than “philosophers” so amazing!