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Somnabulist
Location: corner of No and Where
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The individual mandate will almost surely be ruled constitutional.
Link 1.
Quote:
The legal question isn't whether it would be unusual for the government to compel people to buy health insurance. It's whether it would square with the Constitution. Mark Hall, a professor of law at Wake Forest University, argues that it would, in part based on the commerce clause, which since the New Deal has permitted the federal government to expand its power in various ways by defining various activities as "interstate commerce." Although health delivery is often local, Hall writes, "most medical supplies, drugs and equipment are shipped in interstate commerce." More to the point, "most health insurance is sold through interstate companies."
Yes, counter Urbanowicz and Smith, but "it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction." Does the commerce clause cover your refusal to engage in interstate commerce?
Well, yes, Hall in effect answers, because when a person declines to purchase health insurance, that affects interstate commerce, too, by driving up health insurance premiums for everyone else:
Covering more people is expected to reduce the price of insurance by addressing free-rider and adverse selection problems. Free riding includes relying on emergency care and other services without paying for all the costs, and forcing providers to shift those costs onto people with insurance. Adverse selection is the tendency to wait to purchase until a person expects to need health care, thereby keeping out of the insurance pool a full cross section of both low and higher cost subscribers. Covering more people also could reduce premiums by enhancing economies of scale in pooling of risk and managing medical costs.
In essence, the commerce clause enables the economic arguments for the individual mandate to become legal arguments as well.
Urbanowicz and Smith next reach for that perennial conservative favorite, the Fifth Amendment's takings clause, which says the government may not take property from a citizen without just compensation. "Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances," Urbanowicz and Smith write, "could be considered an arbitrary and capricious 'taking.' …"
But according to Akhil Reed Amar, who teaches constitutional law at Yale, the case law does not support Urbanowicz and Smith. "A taking is paradigmatically singling out an individual," Amar explains. The individual mandate (despite its name) applies to everybody. Also, "takings are paradigmatically about real property. They're about things." The individual mandate requires citizens to fork over not their houses or their automobiles but their money. Finally, Amar points out, the individual mandate does not result in the state taking something without providing compensation. The health insurance that citizens must purchase is compensation. In exchange for paying a premium, the insurer pledges (at least in theory) to pay some or all doctor and hospital bills should the need arise for medical treatment. The individual mandate isn't a taking, Amar argues. It's a tax.
But how can it be a tax if the money is turned over not to the government but to a private insurance company? William Treanor, dean of Fordham Law School and an expert on takings, repeated much of Amar's analysis to me (like Amar, he thinks a takings-based argument would never get anywhere), but instead of a tax he compared the individual mandate to the federal law mandating a minimum wage. Congress passes a law that says employers need to pay a certain minimum amount not to the government but to any person they hire. "The beneficiaries of that are private actors," Treanor explained. But it's allowed under the commerce clause. "Minimum wage law is constitutional." So, too, then, is the individual mandate.
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Link 2
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Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. See here and here and here. Their reasoning is unconvincing and deeply flawed. Since I’m writing in part for a non-legal audience, I’ll start with some basics and provide a lay explanation. (Go here for a fuller account).
Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.
An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.
Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights - the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”
Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.
If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.
Mark Hall
Professor of Law and Public Health
Wake Forest University School of Law
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