posted by Gerard Magliocca
Why is the Affordable Care Act still so controversial? I want to advance the following explanation: Whenever the government gives substantial regulatory power to private firms (or a single private firm), serious constitutional doubts emerge. This conclusion does fit neatly into any doctrinal category, but it does explain a lot of significant constitutional controversies. Consider these examples:
1. The Bank of the United States. This was the great constitutional controversy at the start of the Republic. Congress gave a private firm tremendous (and largely unregulated) power over monetary policy. In effect, we had a private central bank. All sorts of arguments were made against this arrangement, but the most persuasive one probably was that it was inappropriate for the government to delegate this fundamental authority to a private firm.
2. The Slaughterhouse Cases. There is no shortage of literature on these decisions, but one point that is often overlooked is that there were four votes to say that state monopolies should be viewed suspiciously–they were not like ordinary economic legislation. Justice Field’s dissent explained at length why monopolies were different, drawing on the common law.
3. The National Industrial Recovery Act. FDR’s initial effort to tackle the New Deal delegated broad authority to firms and unions to set wages, hours, and work conditions. The Supreme Court struck this down on non-delegation and Commerce Clause grounds, but again the deeper problem was that the private sector was being given broad discretion to make law.
The Affordable Care Act bears some resemblance to these precedents. The individual mandate is a requirement that you subject yourself to private power. In fairness, this is regulated more closely than the examples listed above, but insurance companies still have quite a bit of discretion over health care policy. Moreover, there is a concern about corruption once the state and private companies get linked in this way–corruption was, of course, a leading argument against the Bank of the United States.