Today the U.S. Court of Appeals for the Sixth Circuit upheld the so-called “individual mandate” provision of the Patient Protection and Affordable Care Act. Thomas More Law Center v. Obama, No. 10-2388 (6th Cir. Jun. 29, 2011). A public interest law firm and four individuals challenged the law, arguing that the individual mandate exceeded the authority of Congress under the Commerce Clause of the U.S. Constitution and that it is an unconstitutional tax. Responding to the plaintiffs’ contention that the law improperly regulates inactivity, the court wrote that,
[T]he text of the Commerce Clause does not acknowledge a constitutional distinction between activity and inactivity, and neither does the Supreme Court. Furthermore, far from regulating inactivity, the provision regulates active participation in the health care market.
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The unavoidable need for health care coupled with the obligation to provide treatment make it virtually certain that all individuals will require and receive health care at some point. Thus, although there is no firm, constitutional bar that prohibits Congress from placing regulations on what could be described as inactivity, even if there were it would not impact this case due to the unique aspects of health care that make all individuals active in this market.