For Immediate Release

Organization Profile: 

Megan Smith
Phone: 202-741-6346

Clearly Constitutional--A Primer on the Constitutionality of the Affordable Care Act

WASHINGTON - Nearly three dozen judges have now considered challenges to the
landmark Affordable Care Act and the overwhelming majority of these
cases have been dismissed. Nevertheless, a single outlier judge in
Virginia has embraced the meritless arguments against the new health
care law and another judge in Florida also appears poised to break with
the overwhelming consensus of his colleagues.

With only a few exceptions, these lawsuits principally challenge the
Affordable Care Act’s minimum coverage provision—the provision requiring
most Americans to either carry health insurance or pay slightly more
income taxes—falsely arguing that Congress lacks the constitutional
authority to enact such a provision. It is true that Congress’s
authority is limited to an itemized list of powers contained in the text
of the Constitution itself, but while Congress’s powers are not
unlimited, they are still quite sweeping. There is no doubt that the
Affordable Care Act fits within these enumerated powers in three ways,
as this issue brief will demonstrate.

Congress has broad power to regulate the national economy

A provision of the Constitution known as the “commerce clause” gives
Congress power to “regulate commerce … among the several states.” And
there is a long line of Supreme Court decisions holding that Congress
has broad power to enact laws that substantially affect prices,
marketplaces, or other economic transactions. Because health care
comprises approximately 17 percent of the national economy, it is
impossible to argue that a bill regulating the national health care
market does not fit within Congress’s power to regulate commerce.

Nevertheless, opponents of the Affordable Care Act claim that a
person who does not buy health insurance is not engaged in any economic
“activity” and therefore cannot be compelled to perform an undesired
act. Even if these opponents were correct that the uninsured are not
active participants in the health care market— and they are active, of
course, every time they become ill and seek medical care—nothing in the
Constitution supports this novel theory. Indeed, this theory appears to
have been invented solely for the purpose of this litigation. Congress
has enacted countless laws which would be forbidden under this
extra-constitutional theory:

  • Guns: President George Washington signed a law that
    required much of the country to purchase a firearm, ammunition, and
    other equipment in case they needed to be called up for militia service.
    Many of the members of Congress who voted for this mandate were members
    of the Philadelphia Convention that wrote the Constitution.
  • Civil rights: The Civil Rights Act of 1964 compelled
    business owners to engage in transactions they considered
    undesirable—hiring and otherwise doing business with African Americans.
  • Insurance mandates: The Affordable Care Act is not even
    the only federal law requiring someone to carry insurance. The
    Price-Anderson Act of 1957 requires nuclear power plants to purchase
    liability insurance and the Flood Disaster Protection Act requires many
    homeowners to carry flood insurance.
  • Other mandates: Other laws require individuals to perform jury service, file tax returns, and register for selective service.


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For the full memo, click here.

For audio of a press call regarding a statement of health reform’s Constitutionality signed by over a hundred law professors, click here .

For a copy of the letter or to speak to Professors Bill Marshall or Adam Winkler, contact Megan Smith at or 202-741-6346.


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