NFIB v. Sebelius and the Right to Health Care: Government's Obligation to Provide for the Health, Safety and Welfare of Its Citizens

Abstract

One of the most important roles government plays in contemporary society is protecting people from unsafe products and environmental conditions. Although the Supreme Court has rejected calls to read the Constitution of the United States to include positive rights, this article’s central claim is that the Supreme Court’s rejection of the Medicaid expansion in the Patient Protection and Affordable Care Act makes sense only if the Constitution is understood as requiring government to provide for the health, safety and welfare of its citizens. It’s not that Chief Justice Roberts intended this implication, but if states did not feel obligated to provide, in this instance, health care, they would not have felt coerced, as the Court’s opinion concluded they were, into accepting the Medicaid expansion. Congress violates this understanding when it enacts irrational exceptions to health, safety and welfare programs, such as the 1975 Proxmire Amendment which limits the FDA’s authority to regulate vitamins and supplements. Even if courts do not strike down irrational exceptions to health, safety and welfare laws, their inconsistency with government’s basic obligation to its citizens should make legislators and regulators hesitate before enacting or promulgating them.

Keywords: positive rights, constitutional law, Proxmire Amendment

JEL Classification: K23, K32