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In June the Supreme Court of the United States will decide the fate of health care reform when it rules on whether the Affordable Care Act, which was signed into law in March 2010, is constitutional. The case against what has come to be known as Obamacare was filed by twenty-six states together with several organizations and individual persons. After making its way through four federal appellate courts, it reached the Supreme Court in 2012. Hearings were held in March.

The main challenge to the Act is the so-called individual mandate which requires of every American citizen to buy health care insurance or pay a penalty. The individual mandate has been justified in connection with the parallel barring of insurance companies from denying coverage to those with pre-existing conditions or from charging higher premiums. The argument here is pretty straightforward: only if all citizens are covered by health insurance, is it possible for health insurers to provide health care at an equitable price.

The plaintiffs consider the individual mandate unconstitutional on the grounds that it represents a form of positive regulation of economic activity. As explained by the political philosopher Ronald Dworkin writing for the New York Review of Books (‘Why the Mandate is Constitutional: The Real Argument’), the Commerce Clause of the U.S. Constitution entitles the federal level of government to regulate economic activities among states but, as in the European Union, the scope of federal regulation is to be constrained by the principle of subsidiarity. In practice, this often means that negative forms of regulation—as when removing or imposing limitations to economic activities—are easier to justify than positive forms of regulation which entail prescriptive measures, like the requirement to buy health insurance.

Admittedly it takes some imagination—and a fair amount of conservative anti-federalist conviction—to construct the individual mandate to buy private insurance as unconstitutional, not least since it shares several commonalities with taxation which is part and parcel of any (federal) state legislature.

Nonetheless, and as the Supreme Court hearings have shown, the underlying dilemma is not entirely ideological in nature. The key question that has repeatedly emerged in deliberations is ‘where is the limit’ or what might be a so-called limiting principle with respect to the regulation of inactivity: “Why could Congress not make people buy electric cars to reduce pollution? Or join health clubs to improve the nation’s health? Or buy broccoli to keep broccoli prices high or because it is seen as healthy? All the conservative justices who participated in the oral argument pressed such questions.” (Dworkin, NYRB, LIX, 8, p.4)

That is a valid question which deserves careful thought considering that one of the pillars of democratic societies is the preservation of individual autonomy, including of the choice of inactivity or opting out.

This said, there is no constitutional or other necessity to treat ‘inactivity’ differently than ‘activity’. When states regulate activity it is because there are good reasons for doing so in terms of advancing societal welfare even if this is partly at the expense of individual autonomy. The same applies to inactivity. In other words, in those cases where a form of inactivity can be shown to impact significantly on public goods or societal welfare then it can be considered as equivalent to activity and as such within the legitimate scope of regulation.

Following this logic, the difference between buying health insurance and joining a health club (or buying broccoli) is pretty obvious. If I were to join a health club, that might improve my own health, but only under the condition that I also exercise regularly and maintain an otherwise healthy lifestyle. In other words, the effect is dependent on several additional factors. Moreover, the degree of contingency is even greater in relation to public health. This is a situation which is quite different from that of buying health insurance. There the effects are more direct and the benefits evident—both for me personally and in terms of public health.

A frequent problem with legal and philosophical scholarship is that it can easily get bogged down by exact classifications thus losing sight not only of the forest for the trees but also of the obvious. Oranges and apples are different fruits. That is the limiting principle!

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