August 2011 Volume 7 Number 12

The Constitutionality of the Patient Protection and Affordable Care Act: Will One Man Have the Final Say?

By Wendy Cooper, 3L, Thomas M. Cooley Law School, Lansing, MI1

AuthorIn an attempt to remedy the increasing costs of healthcare and healthcare insurance, President Obama proposed a universal system of healthcare where, with a few exceptions, everyone would be required to purchase and maintain basic healthcare coverage. After many months of debate and countless modifications, the Patient Protection and Affordable Care Act (PPACA) was passed by a democratically controlled House and Senate. On March 23, 2010, the President signed the comprehensive reform into law and dozens of lawsuits were filed across the Country contesting the bill’s constitutionality. As of this writing, five lawsuits have been decided by the district courts – three have found the bill to be constitutional; in one lawsuit the judge ruled most of the bill constitutional but found the “individual insurance” mandate2 in violation of the Commerce Clause; in the last and largest of the suits to be decided the judge found the entire bill to be unconstitutional.3 In each of the suits the main issue focused on whether the individual insurance mandate was a violation of the Constitution’s Commerce Clause.

What is the state of the PPACA now that it has had a chance to work its way through the lower courts? The lower federal courts have split on the matter setting up a battle in the nation’s highest court. So, what may the outcome be when it does reach the Supreme Court?

In the cases decided in the district courts – one fact became painfully clear: the decisions fell right down party lines. Judges appointed by Republican Presidents held that either part of or the entire PPACA was unconstitutional, while the Judges appointed by Democratic Presidents upheld the PPACA. The battle over the PPACA’s constitutionality, given that there is a split among the district court decisions,4 is almost certainly headed for the Supreme Court where a 4-4 split5 between liberal and conservative justices exists, and Justice Anthony Kennedy is a wild card.6 It will most likely be at least a year or so before the Supreme Court issues a decision on the constitutionality of the PPACA.7

Both Supreme Court Justices Clarence Thomas and Elena Kagan may need to weigh the possibility of recusal for conflicts of interest. Justice Thomas recently amended twenty years of financial disclosure forms when questioned about why his wife’s income was omitted from the form. His wife, Virginia Thomas, has ties to a lobbying group that opposes the healthcare law, as well as, being cofounder of an organization — Liberty Central — a conservative political education group.8 Elana Kagan, served as President Obama’s Solicitor General until he nominated her for the Supreme Court in 2010. As Solicitor General, Kagan was the top appellate lawyer for the White House. There is no indication that she was involved in the policy-making decisions of the PPACA; however as a top member of the President’s team her ability to maintain impartiality is at issue.9 10

Examination of the rulings to date revealed one troubling aspect of the decisions, issued by Henry Hudson11 and Roger Vinson,12 and that had to do with the lack of circumspection applied to consideration of the mandate. While Judge Hudson claimed to “hew closely to the time-honored rule to sever with circumspection,” he devoted only one paragraph to carefully consider all circumstances and consequences of his ruling, stating that “without the benefit of extensive expert testimony and significant supplementation of the record,” he cannot determine “what, if any, portion of the bill would not be able to survive independently.”13 Both judges reasoned that the individual insurance mandate, if allowed to stand, would lead to government mandated vegetable eating and mandatory, model-specific, car purchases.14

Jack Balkin,15 author of a supporting brief for the defendants, stated that “[c]ritics charge” people “who do not buy health insurance” cannot be regulated by Congress because “they are simply doing nothing.” He found to the contrary:

When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation – in this case, its regulation of health insurance markets.16

Mr. Balkin argued that any constitutional challenges will not succeed and the:

Supreme Court will almost certainly uphold the tax, at least if it follows existing law. To strike down the individual mandate, it would have to reject decades of precedents. It is very unlikely that there are five votes on the current Court for staging such a constitutional revolution.17

However, some have argued that in Bush v. Gore the Court had set precedent – at least in a political sense – for “staging such a constitutional revolution.”18 In Mead, Plaintiff’s argued that the Commerce Clause does not authorize Congress to “regulate inactivity by requiring individuals to buy a good or service (such as health insurance)….19 There is no question that government has forced its citizens to purchase insurance products in the past and that the constitutionality of those purchases has been litigated and upheld.20 Flood insurance is required by those living in flood plains, minimum amounts for liability insurance for automobiles is required in most states and the remaining states require no-fault insurance, homeowners are required to carry insurance if they have a mortgage lien on their home, and professionals are required to carry malpractice insurance. In short, the government requires the purchase of insurance at almost every level and at each level the underlying goal is based in public policy. In the case of car insurance, no-fault laws “were created to remedy the long recognized and serious problem of the tort system’s inability to rapidly, adequately, and fairly compensate victims of automobile accidents.” More importantly, in a statement that can fairly be compared to the goal articulated by the insurance mandate:

No-fault seeks to guarantee every person insurance coverage on a fair and equitable basis, avoid inadequate compensation to victims of automobile accidents, and require registrants of the state to procure automobile insurance coverage.21

The idea of compelling citizens into commerce does not appear as unprecedented as the opposition would have the courts believe.

While both sides – for or against – make compelling arguments regarding PPACA constitutionality, it would appear that, this issue has become highly political and arguments made maybe of little importance to the courts. Given the decision reached in Bush22 and the party-line votes in a majority of the lower courts, the fate of the PPACA could rest solely in the hands of Justice Kennedy.23


Wendy Cooper is a third-year law student at Thomas M. Cooley Law School and an Articles Editor for the Thomas M. Cooley Law Journal. She may be reached at

2 The individual insurance mandate is found in section 1501 of the PPACA and requires nearly every American citizen maintain healthcare insurance or face a tax penalty based on income level.

See generally Thomas More Law Ctr. v. Obama, 720 F.Supp.2d 882 (E.D. Mich. 2010); Liberty University, Inc. v. Geithner, 2010 WL 4860299 (Nov. 30, 2010); Viginia v. Sebelius, 728 F.Supp.2d 768 (E.D. Va., 2010); Florida v. U.S. Dep’t of Health & Human Services, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011); Mead v. Holder, 2011 WL 611139 (DC 2011). This article is an excerpt from a larger paper that focused exclusively on the cases that had ruled on the constitutionality of the individual insurance mandate.


In the first of three higher court rulings expected this summer, a federal appeals court in Cincinnati upheld the individual mandate (2-1). It was the first decision in which a Republican-appointed judge ruled in favor of the mandate.



The four justices – Scalia, Chief Justice Roberts, Thomas and Alito – appointed by Republican Presidents and the four justices appointed by Democratic Presidents – Breyer, Kagan, Sotomayor, and Ginsburg – have mostly voted down partisan lines. See for biographies of the justices.


Justice Kennedy tends to rule from the middle. He was appointed to the Supreme Court in 1988 by Ronald Reagan. See generally for a biography of Justice Kennedy.


Ariane De Vogue & Devin Dwyer, Justice Clarence Thomas Amends 20 years of Disclosure Forms with Wife’s Employers, ABC NEWS




See Sheryl Gay Stolberg et. al., A Climb Marked by Confidence and Canniness, N.Y. TIMES, May 10, 2010, for a Ms. Kagan’s biography.


See Sheryl Gay Stolberg et. al., A Climb Marked by Confidence and Canniness, N.Y. TIMES, May 10, 2010, for a Ms. Kagan’s biography.



Judge Hudson was appointed by George W. Bush in 2002 to the U.S. District Court for the Eastern District of Virginia.


Judge Vinson was appointed to the U.S. District Court, Northern District of Florida, by Ronald Reagan in 1983. He served as Chief Judge from 1997-2004 and obtained senior status in 2005. See for a complete biography of Roger Vinson.


Sebelius, 728 F.Supp.2d 768, at 789.



See id .; See also Florida,2011 WL 285683, at *39.


Jack Balkin, The Constitutionality of the Individual Mandate for Health Insurance, N ENGL J MED 362, 482 (2010).See also for a complete biography of Mr. Balkin. He is coauthor of “Amicus Curiae Brief of Constitutional Law Professors In Support of the Secretary’s Motion for Summary Judgment” No. 3:10-cv-00188-HEH (Oct. 4, 2010) (focusing on the Minimum Coverage Fee as a permissible exercise of Congress’s Taxing Power).


Id . at 482.





Bush v. Gore, 121 S. Ct. 525 (2000). See also, LEDYARD KING, REGULAR PEOPLE, WEIGHTY DECISION PUT HIGH COURT IN NEW LIGHT, GANNETT NEWS SERVICE, Dec. 14, 2000 (quoting Michael Gerhardt as stating that “the court has transformed itself into a political institution. . . . [I]t is going to be very difficult for anyone to look for any neutral principle to defend in this kind of outcome.”).


Mead at *25







See supra note 15.



See supra note 4.

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