Texas and nineteen other states have sued the federal government arguing that the ACA’s individual mandate—the requirement that Americans purchase qualifying health insurance—is unconstitutional.  Texas argues that the mandate can no longer be upheld under the taxing power because Congress zeroed out the penalty for failing to purchase insurance.  As a result, the individual mandate no longer raises any governmental revenue which, under Supreme Court precedent, is an “essential feature” of a tax.  The case will be heard by the Fifth Circuit on Wednesday. 

Can you guess which of these 3 statements about the ACA litigation is not true?

A. Federal courts are within their constitutional authority to strike down a statute enacted by Congress if that statute conflicts with the Constitution.

B. The Fifth Circuit’s decision should have nothing to do with whether the judges think the ACA is good or bad policy. 

C. Because the penalty for failing to purchase insurance is zero, the mandate does not alter anyone’s legal rights, and does not need to be grounded in a constitutionally enumerated power.

Let’s see how you did!

A. TRUTH!  Judicial review, the power to declare an act of Congress unconstitutional, is part of the fundamental separation of powers that protects the interests of the minority.  As Chief Justice Marshall wrote in Marbury v. Madison, judicial review protects the principle that the Constitution is the Supreme Law of the Land.  Our Founders insisted on an independent and life-tenured judiciary as a bulwark of protection for individual liberties.  As a result, under the Supremacy Clause, the federal courts must strike down a statute if it is inconsistent with the Constitution. 

B. TRUTH!  One of the biggest misperceptions about the ACA litigation is that any court decision should turn on whether or not the law is good or bad policy.  Under Article I of the Constitution, that question is one for Congress, not the federal courts. The question before the Fifth Circuit is a limited one:  May Congress use its taxing authority to require individuals to purchase products when the purported “tax” raises zero federal revenue, and when the Supreme Court has held that “the essential feature” of a tax is that it produces revenue for the government?

C. LIE! Congress cannot bypass constitutional constraints and force individuals to buy a product by enacting a zero penalty.  The Constitution establishes a federal government of limited, enumerated powers.  Under the Tenth Amendment, those powers not delegated to the federal government are reserved to the states or the people.  Any government action, including a statute which purports to require private individuals to purchase a product, must be grounded in an enumerated power—regardless of the enforcement mechanism.