Most Constitutional Law scholars have avidly followed the proceedings in the US Supreme Court concerning the Affordable Care Act. The critical questioning of the Solicitor General by the four conservative justices and the swing Justice, Kennedy, does not bode well for the upholding of the mandate portion of the legislation. If that falls, then it may not be possible to sever and save the key parts of the rest of the legislation, due to the free ridership and moral hazard problems associated with persons refusing to buy health insurance and thus requiring their fellow citizens to subsidize the costs of their health care. Justice Scalia notably compared legislatively requiring people to purchase health insurance, or alternatively pay a fine or penalty, to legislation requiring people to buy broccoli. There is, of course, absolutely no moral harzard or free ridership problem involved in choosing not to eat broccoli while others diligently partake of it so this is a rather ridiculous comparison. Therefore, there is no reason why the mandate clause should not be permissible under the Commerce clause in the US Constitution. Perhaps, alternatively, it could be supportible under the federal taxing power if it is viewed not as a legislated requirement to purchase something but rather as means of obtaining an exemption from or a credit against a tax which would otherwise be levied on the individual in the same manner as, for example, the purchase of a hybrid vehicle can trigger certain tax deductions and credits.
So what do migratory birds have to do with all of this? The answer is a 1920 decision of the U.S. Supreme Court, Missouri v. Holland, in which the famous Justice Oliver Wendell Holmes stated for the Court that it was constitutional for the federal government to pass legislation implementing the Migratory Bird Treaty, even though the legislation intruded on a matter that was under state jurisdiction and would have been clearly unconstitutional in the absence of a treaty. There is a strong school of thought that Missouri v. Holland was manifestly incorrectly decided and one of the most convincing proponents of this notion is Professor Nicholas Rosenkranz, who has written an excellent and very persuasive 2005 piece in the Harvard Law Review. The theory that Missouri v. Holland was simply incorrectly decided is relevant to the issue of the Affordable Care Act because one of the arguments in support of the legislation is that one of its purposes is to implement the U.S.' obligations under the Convention on the Elimination of All Forms of Racial Discrimination, given that statistics indicate that approximately 40% of all Hispanic Americans do not have health coverage. In the recent decision of Bond v. United States, the Supreme Court allowed certiorari of a case on the basis that there is a good possibility that Missouri was incorrectly decided. It seems, therefore, that the subtext behind the rather ridiculous Broccoli argument, and the apparent doubts of the other conservative justices, then, may be an unstated concern that the ACA is really an attempt to impose an otherwise unconstitutional piece of legislation on states under the guise of implementing the U.S.' obligations under an international treaty. If so, this would be an extremely unfortunate result that was likely unintended and unanticipated by advocates raising the treaty argument in support of the ACA. (Personally, I don't mind a bit of broccoli now and then, as long as it has some melted cheese on top.)