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.