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Health Insurance Mandate vs. the U.S. Constitution

davidswanson's picture

By David Swanson

Does the United States Constitution allow Congress to force people to purchase a product (health insurance) from a private corporation, and fine them or tax them if they refuse? The answer is a matter of debate, but there is little dispute that such an act of Congress would be unprecedented.

Sheldon Laskin, an Adjunct Professor at the University of Baltimore Law School who has argued that the Constitution forbids such a move, describes the new and dangerous can of worms it would open up:

"If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it. The auto industry is collapsing? Forget Cash for Clunkers, just order Americans to buy cars or tax them if they don't. Obesity crisis? Order Americans to join health clubs, or tax them if they don't. If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses."

Outlandish? Consider this: Many Supreme Court observers expect a ruling, quite possibly on January 12, 2010, in the case of Citizens United vs. Federal Elections Commission that would lift all limits on corporate funding of elections, meaning that national and international corporations could swamp the election system with so much money that any influence from actual citizens would be utterly negated. If you were a corporation and you owned the legislature, and laws were being passed requiring people to purchase products, and you owed it to your shareholders to maximize profits, what would you feel compelled to do? Exactly.

The U.S. Department of Justice recently claimed that, for purposes of keeping illegal government-funded activities secret from the public and the courts, telecommunications corporations were effectively part of the executive branch of the government. Might the same argument not be made, in the none too distant future, about "health" corporations funded by government mandate? If the federal government can force me to give money to major campaign funders, where does the government stop and the private business begin?

Of course most of those arguing that the government cannot do this are libertarians and/or opponents of the Democratic Party, since so many on the left who ought to be raising these concerns have sold their souls to that party and this is a Democratic proposal. But the argument against an individual health insurance mandate is not an argument against a civilized healthcare system. The government can tax the public and/or corporations and pay for healthcare, even with those payments going to private businesses, without running up against the same Constitutional hurdles or the same concerns from observers wary of creeping corporatism.

The Constitution provides Congress with certain enumerated powers in Article I and explicitly leaves all other powers to the states or the people in the 10th Amendment. So, the constitutional question, for those who still care whether laws are constitutional, is whether the power to force you to buy a horrible product you do not want from a disreputable monopolistic corporation that pays regular bribes to your elected representatives in the form of campaign "contributions" is specifically listed anywhere in Article I.

Article I gives Congress the power to "lay and collect taxes" as well as the power to "regulate commerce … among the several states." Interpretations of these clauses have varied. Predictions as to where the current Supreme Court would come down vary. I find Laskin's arguments the most persuasive. Here's a lengthy two-sided debate and here are the cherry-picked opinions offered by Senator Max Baucus (D., Blue Cross Blue Shield).

Is mandated health insurance commerce? It is not, like all other commerce, something that can be resold. It is not, like all other commerce, optional, if you force everyone to purchase it.

Is it interstate? That concept has perhaps been loosened enough to cover anything that counts as commerce, and the new legislation may allow the sale of health insurance across state lines despite candidate Obama's argument that doing so would create a race to the bottom in quality and accountability. But you can't have interstate commerce with something that isn't commerce at all.

Is mandated health insurance a tax? President Obama swears it isn't. He calls its enforcement mechanism a "fine." But perhaps that's for public consumption, whereas courts will be told it's a tax. Is it? How can it be, when it is not a payment to the government? If it is, there is the problem that Article I requires that "imposts and excises shall be uniform throughout the United States" which this would not be.

But the Constitution forbids the ongoing warrantless spying programs. The Constitution does not allow presidents to launch wars. In the Constitution everyone has the right to habeas corpus. We have cases in which the Supreme Court has ruled our general public practices unconstitutional, and yet they blissfully proceed. Ultimately, the question is whether we will stand for fascistic policies or fascistic interpretations of the Constitution. Personally, I will not stand for either.

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MBW's picture
Submitted by MBW on

Of one of the profs at my school (Cornell) of a con law specialist (a purported Progressive at that) and received a significantly different response. Mike Dorf (Cornell ConLaw prof) claimed that, as crafted, the bill is in fact Constitutional, specifically, if it arises under Congress's Commerce Clause powers.

I'm only a lowly 1L, so what do I know. However, while I don't dispute my learned professor's views, I do wonder that this SCOTUS, when given the opportunity to specifically overturn Garcia, might take that opportunity. Who knows. But while I so badly would like to view this bill as unconstitutional, I'm not so sure it passes muster. Just sayin'.

letsgetitdone's picture
Submitted by letsgetitdone on

to see something good on this, David. Thanks for giving us something serious to think about. Wouldn't it be delicious if the fifth vote declaring this law unconstitutional was Sotomayor?

Valhalla's picture
Submitted by Valhalla on

see post and comments here.

Laskin cites precedents that only tenuously and very indirectly support his point. He has nothing to support the idea that resaleability is an element of commerce as interpreted under the Commerce Clause, which is a big part of his argument. The CC covers not just goods (which are often resellable) but services, which are often not. The Court almost never declares Congressional action beyond the reach of the CC. The CC is not just about actual trade in goods in services, but also extends to acts and practices which have a substantial effect on interstate commerce. (sorry, Wikipedia -- I know, but it has good links).

Yes, there are distinctions that can be made between health insurance and life insurance. But to make a reasonably likely to succeed challenge to the mandates, that distinction (and the many other distinctions which people have rightfully raised) has to be a distinction with constitutional meaning.

Even if the mandate could be invalidated based on the CC rationales, Congress could still create a mandate under its Taxing and Spending clause powers. This is how Congress got the equivalent of a national 21-age alcohol law and national speed limits. It's true, as challengers to the mandate have said, that Congress can't exercise federal-level "police powers" (laws for the health, safety etc) directly. But it can pass a law which ties receipt of federal funds to enactment of particular state laws, as long as the receipt of federal funds is related to the laws. So Congress could just pull Medicaid funding from any state refusing to comply with the mandates. Whether Congress could successfully, at this point, change the implementation and enforcement mechanisms of the mandate (the IRS couldn't be collector/enforcer under that scenario) is much more a political question than a constitutional one.

Ironically, it may be the conservatives on the Court who could save us. Conservatives hate the broad reach of the CC because blah blah original intent blah blah Congress interfering with states' rights blah blah strict construction blah.

I would LOVE to find a constitutionally compelling challenge to the mandates, but Laskin's isn't one, and I haven't been able to find one elsewhere.