George Will muses on the constitutionality of the individual mandate in his most recent column:
Opponents of the mandate say: Unless the commerce clause is infinitely elastic — in which case, Congress can do anything — it does not authorize Congress to forbid the inactivity of not making a commercial transaction, of not purchasing a product (health insurance) from a private provider.
I’ve posted previously on the subject of the constitutionality of healthcare reform here and here.
It’s an important issue but of largely theoretical interest. As a matter of practical fact the individual mandate as it’s called is unprecedented and on anything that is without precedent what is constitutional is no more nor less than what just five members of the Supreme Court of the United States say is constitutional.
I have no idea on which side of the question a majority of SCOTUS members will fall. Do you?
Of course, I do. But I also predicted the St. Louis Cardinals losing to the Yankees in the World Series last year. I have no shame.
With the caveat that I’m not sure we know enough about the three most recent appointees to the SCOTUS, we do have tons of pages of discussion of the commerce clause from the rest. Assuming the newbies vote to their perceived ideological disposition, you will have four justices on the left almost certain to defer to Congress, at least if Congress makes findings that set forth its power to regulate in this area. You will have three justices on the right almost certain to argue that the consequence of Congressional regulation in this area will to be to render the limited powers unlimited. That leaves Scalia (and Kennedy, who seems to follow him in these cases).
Thus the opinion to read is Scalia’s in Gonzales v Raich, where he agreed that marijuana cultivation, even where grown solely for personal use, could be outlawed in order to make interstate regulation effective. My read is that Scalia would support the insurance mandate as not simply a superfluous add-on to healthcare regulation, but something needful, from the exercise of reasonable political judgment, to make broad reform of the national healthcare system effective.
Dave, I know you asked the peanut gallery once, but I don’t recall you giving an answer: What would be the effect of the individual mandate being removed?
I think if the mandate were removed, as I understand the bill, a lot of selection bias and increased costs will force people to drop insurance coverage. The increased costs of the subsidies will blow a hole in the federal budget. There will, however, be more poor and “unhealthy” people covered.
Since I think that healthcare reform in the form in which it’s likely to pass the Congress is likely to accelerate the rate at which healthcare costs are increasing, I would say that without the individual mandate the likelihood of those who are currently carrying non-employer paid healthcare insurance to drop it will be increased. Essentially, I think that within a couple of years, certainly by 2014, individual healthcare insurance will cease to exist.
This is off the topic but the ledger pictured that your mom used for Ginny, is exactly like the one I bought in East Germany about 6 yrs ago, to jot down my German vocabulary. It is exactly the same, with the red border and corners and the rest black. They are a common notebook still, in all sizes….
If you read the text of the bills, you will see that there is no mandate to buy health insurance. There is merely a tax on people who do not have it. The commerce clause doesn’t get involved. This is a lawful exercise of Congress’ power to tax and perfectly Constitutional. If this isn’t, neither are tax credits or tax deductions.
I didn’t know how it was being implemented and agree with Alex that the commerce clause doesn’t apply to taxes.
There have been court cases that have struck taxes on marijuana when the tax was deemed to actually be an additional punishment for a crime or it required disclosures that violated the right against self-incrimination.
It’s a tax on breathing. Which is why the IRS would be put in charge of ensuring compliance. JUST the people you want in charge of your health care, no?