Individual Mandate of the PPACA Term Paper

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¶ … Founding Fathers of the United States went to great lengths to ensure a division of power between the three branches of government and a system of checks and balances was put in place for this purpose. Over the years, though, the U.S. Congress has expanded its power through various legislative initiatives including most recently the Patient Protection and Affordable Care Act that mandates that individual healthcare consumers must purchase insurance or face a tax penalty. This paper provides a review of the relevant peer-reviewed and scholarly literature concerning the history and principles of Federalism as applied to the political arguments about the Patient Protection and Affordable Care Act. A summary of the research and important findings about the Act are provided in the conclusion.

Review and Discussion

Like the federal budget, many authorities argue that the federal government continues to expand in size, scope and power year after year irrespective of which political party is in the majority at the time. For instance, Loyola (2011) reports that, "It is a common refrain that the federal government has been progressively expanding its scope and reach for at least a century, regardless of which party was in control" (p. 113). Consequently, this expansion of federal power has been the source of a growing amount of research -- and concern -- among constitutional scholars and the mainstream press (Loyola, 2011). The focus of a great deal of this research has concerned the Patient Protection and Affordable Care Act (PPACA) and more specifically, the mandate that individuals must purchase health insurance or be required pay a penalty to the Internal Revenue Service (Loyola, 2011). This is an example of what Loyola (2011) terms "cooperative federalism" wherein the federal government has become inextricably involved in the administration of state government policies in ways that are "incompatible with the structural framework of dual sovereignty [and] the standard of federalism enshrined by the Supreme Court in Printz v. United States" (p. 114). In Printz v. United States, which concerned interim administration provisions of the Brady Handgun Violence Prevention Act (the Brady Bill), the Supreme Court held that state legislatures are not subject to federal direction. According to a case brief for Printz v. United States, "The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state chief law enforcement officers to fulfill its federal tasks for it - even temporarily" (Printz v. United States, 2013). The Printz case, together with other precedential cases, has "elevate[d] the Tenth Amendment into an extra-textual, judge-made principle of intergovernmental immunity. Protecting the Constitution's structural framework of dual sovereignty has thus emerged as a doctrine with potentially far-reaching consequences" (Loyola, 2011, p. 114).

The Tenth Amendment to the U.S. Constitution provides for "intergovernmental immunity" by stipulating that, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." In this regard, Loyola points out that:

Because the 'intergovernmental immunity' enshrined in the Tenth Amendment is just as vulnerable to federal power indirectly applied as cooperative federalism as when such power is directly applied, there is ultimately a conflict between that 'intergovernmental immunity' and the precedents that sustain conditional federal grants and conditional preemption. (2011, p. 114)

Over the long-term, these trends may have serious implications for the traditional division of powers between the branches of government in the United States, creating what is essence is a government with no legally enforceable separation of state and federal government functions (Loyola, 2011). In this regard, Loyola emphasizes that, "The Tenth Amendment enshrines the concept of 'reserved' powers for the states, and well into the twentieth century it was often by reference to those reserved powers that the practical limits on federal power were defined" (p. 114). Article I, Section 8 of the Constitution states, "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States." After the judicial branch of the government started defining federal power, especially the commerce and spending powers, with reference only to Article I, Section 8 of the Constitution, the pragmatic constraints on federal power were essentially eliminated (Loyala, 2011).

What is particularly vexing for many constitutional scholars that have identified a rise in federalism in recent years is the manner in which the PPACA makes an act of omission an act that carries a penalty. Most of the laws in the United States are crafted for commissionable acts and there are few laws that address acts of omission, such as failing to pay income taxes or come to the assistance of those in need (good Samaritan laws). As May (2013) points out, "Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things" (p. 233). The purpose of the PPACA is to provide healthcare insurance coverage to tens of millions of Americans that do not have such coverage, but the mandate is viewed by many to exceed the powers of the U.S. Congress under the Commerce Clause. Certainly, there is a need for the PPACA because approximately 50 million Americans remains uninsured, and these healthcare consumers require more than $100 billion in healthcare services each year, and more than 33% of these services go unpaid (May, 2013).

Nevertheless, the so-called "individual mandate" provision of the PPACA that requires uninsured Americans to purchase health insurance from a private company or be subjected to a penalty ranging between about $700 and $1,500 for noncompliance that are paid to the federal treasury remains a sore spot for many observers because it is believed to overstep the traditional powers assigned to the U.S. Congress (May, 2013). In this regard, May reports that, "The individual mandate requires many previously uninsured Americans, whether they need care or not, to purchase insurance from a private insurance carrier" (2013, p. 234).

Indeed, many constitutional scholars maintain that making an act of omission an act that can be penalized by the federal government not only oversteps the power of the U.S. Congress, it creates a new type of federalism that defies the Constitution's limits. For instance, Cuccinelli and Getchell (2011) report that the authority of the U.S. Congress to regulate "activities substantially affecting interstate commerce" do not extend to acts of omission with respect to the mandatory purchase of healthcare insurance pursuant to the provisions of the PPACA. According to Cuccinelli and Getchell, "Because the passive status of being uninsured is not such an activity, the mandate and penalty exceed the affirmative outer limits of the Commerce Clause" (2011, p. 293). Some indication of the rise of federalism subsumed in the PPACA is its individual mandate requirement that is especially irksome to constitutional scholars because it involves authority that is not given the Congress under the Constitution. In this regard, Cuccinelli and Getchell report that, "The claimed power to require a citizen to purchase a good or service from another citizen is tantamount to a national police power; hence, the mandate and penalty are also beyond the negative outer limits of the Commerce Clause" (p. 292). Notwithstanding these arguments to the contrary, the PPACA, as amended by the Health Care and Education Reconciliation Act of 2010, was passed by the U.S. Congress and signed into law by President Barack Obama on March 23, 2010 (Read the law, 2013). The law as written,… [END OF PREVIEW]

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