A day or so ago I raised a question about the constitutionality of the “public option”. Apparently, that’s not the only constitutional question in healthcare reform. In an op-ed in the Washington Post lawyers David Rivkin and Lee Casey ask and answer a question: does the federal government have the power to compel individuals to carry healthcare insurance (the “individual mandate”)?
In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.
Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.
State power is extremely broad and, state constitutions permitting, the states might well have the power to impose such regulations but the federal government probably does not. The power of the federal government has grown enormously in the last seventy years but it is not infinite. There continue to be some things that Congress simply cannot do.
Note that the individual mandate is largely a tactical matter, an attempt to gain the support of insurance companies for healthcare reform via the inducement of thousands of prospective new customers.
The strategy that Congress usually pursues in negotiating matters like these is inducement rather than fiat but I don’t know that I’ve heard any discussion of plans along those lines. My sense is that the Congress and, presumably, the Obama Administration are looking for a grand sweeping solution rather than negotiations with 50 states.
But that’s our system and it will take a constitutional amendment to change it. That, too, would require the acquiescence of the states.
I’m not convinced that health care or health care insurance are not commercial activities.
Plus, federal law currently requires medical providers to supply emergency care, so an insurance mandate loosely remedial of that unfunded mandate should stand scrutiny.
PD, I think the point they’re making is that while health insurance companies are “quintessentially economic” activities carrying healthcare insurance isn’t. I thought it was an interesting argument.
If the federal government has the power to compel you to buy health insurance, does it have the power to compel you to buy a car?
That’s a rather bizarre interpretation.
I’m pretty sure it wouldn’t be so much the federal government forcing you to buy it as penalizing you for not buying it.
T0 add-
There’s an easy end-run around this. Just make all federal funding of a certain type dependent on states accepting the mandate, like what they did with the drinking age.
Hey, who needs the Constitution anyway? Individual rights? Those are SO 18th, 19th and 20th century.
That being said, I’m pretty sure there would be four votes (I’m including Sotomayor here) that would pretty much do whatever the Democrats wanted them to do, the question would be if Kennedy would be willing to expand the reach of teh Federal government this far.
I tend to doubt it.
Anything that affects one-sixth of the economy will be seen as having enough economic impact for Congress to intervene. Having said that, forcing citizens to preferentially benefit private enterprises is iffy – they might have less of an issue with a public plan than with co-ops. But there’s no question that Constitutionality lawsuits would disrupt implementation for years if this passes. (If you can indict a ham sandwich, you can certainly raise Constitutionality questions about one…) The suit process would galvanize independent and Right resistance to the Administration like nobody’s business, which could well lead to a 1994-style loss of political control over Congress. Passing the legislation might be easier than actually getting it implemented, in that case. Liberals could win the tactical battle while losing the strategic war.
The individual mandate is unconstitutional because it does not regulate a commercial activity. The activity that has to be commerical in nature is the activity of the individual being regulated, not the bigger picture healthcare system (see Raich and Lopez). However, there is no particular activity that triggers the application of the individual mandate. Indeed people don’t have to be engaged in any activity at all, short of simply existing. By merely existing – that’s right, by merely being a living American citizen – they have to acquire insurance. Let that sink in for a moment – they HAVE TO enter into a private contract with a private corporation for the provision of services. The federal government presumes to force this upon every individual person.
There is no doubt in this attorney’s mind that the Roberts Court will choke on this and spit it right out.
As much as it seems wrong to me, I can’t see any hope that the courts would find Obamacare unconstitutional. They gave the game away in the 1940s. The federal government taxes people to fund Medicaid and Medicare, which are essentially health care insurance for the poor and elderly. It taxes us to fund Social Security, which is a pension program similar to other pensions provided by private enterprise. It also mandates the states to kick in to these programs and regulates them as if they were federal lackeys.
I would like to be able to rely on the Supreme Court to limit federal power, but if it can’t see a way clear to limit its own activist impulses, how can we expect it to impose such limits on Congress?
I think the drafters of the Constitution must have assumed that it would be easier to amend it than it has turned out to be as the union expanded. I’m afraid the horse is out of the barn, and I don’t see any way to redress the situation short of a big, sustained movement of voters determined to vote out liberals and elect people who will support amending the Constitution. Other than that unlikely occurrence, I fear that a finance collapse leaving the government unable to pay the interest on the national debt is the only thing that will bring us to our senses.
Brett August 22, 2009 at 10:27 am
Brett’s response to the following post from Dave Schuler is interesting …
Schuler: If the federal government has the power to compel you to buy health insurance, does it have the power to compel you to buy a car?
Brett: I’m pretty sure it wouldn’t be so much the federal government forcing you to buy it as penalizing you for not buying it.
Brett, I get where you’re coming from, but isn’t it the same either way? Forcing me to buy it and/or penalizing me for not buying it are both violations of our rights. If there are differences, they’re subtle and don’t change the overarching issue, which is that Congress isn’t within its boundaries to think it can tell us we have to buy health insurance or decide to hit us with a bill if we don’t.