Is health care reform constitutional – especially an individual mandate. The answer is “no” according to an increasing chorus of conservative legal opinions, here, here, here, here, here, here, and here.
As Sen. Patrick Moynihan once quipped, “everyone is entitled to his own opinion, but not his own facts.” So too for law. Certainly, one might wish for a legal order where Congress lacks the power to mandate health insurance, but that in no way is our actual constitutional law, in fact. Fred Schauer hit this nail on the head last week on Politico:
And so on the question, “Is it constitutional?,” is all depends, as President Clinton memorably reminded us, on what you mean by “is.” If the question is about whether this is constitutional according to Supreme Court precedents, the answer is an overwhelming “yes.” . . . But if the question is how the Constitution *should* be understood, precedent and the last seventy years of doctrine aside, . . . those who make claims based on any of these (or other) normative theories of constitutional interpretation have an obligation to make clear that they are talking about “is” in the context of their own preferred theory of constitutional interpretation and not at all in the context of what the Supreme Court precedents actually say.
Turning to those precedents, I’ll start with the power to tax and spend for general welfare, and power to regulate interstate commerce. [If you don’t recall the chapter and verse, Google Wikipedia for a quick refresher.]
First, mandatory Medicare insurance is clearly constitutional, just as mandatory Social Security retirement insurance. The Court upheld Social Security in 1937 (Helvering v. Davis) as a valid exercise of Congressional power to tax and spend for the general welfare.
Mandating private insurance falls under the power to regulate interstate commerce. There is nothing more commercial than insurance, and the financing and impact of insurance clearly crosses state lines – as the Supreme Court held in 1944 (United States v. South-Eastern Underwriters Ass’n).
The only plausible objection is that mandating the purchase of insurance is not the same as regulating its purchase. Opponents distinguish regulating insurers from regulating people who buy insurance, but the Constitution does not address who is regulated, it only addresses what. The what is commerce, and it takes two to trade, so regulating commerce entails regulating either side of the transaction.
Regulation usually takes the form of prohibiting or restricting types of trade, rather than mandating trade. But nothing in constitutional theory or precedent says that government is limited to one type of regulation or another. Government often regulates through mandates when widespread participation is required to meet social needs. Consider, for instance enforcing building codes to keep up property values, compulsory education, and vaccinations.
Healthier insurance requires full participation in order to spread risks, eliminate medical underwriting, and avoid excluding pre-existing conditions. Because mandating insurance is a logical means to achieve the valid legislative purpose of regulating the commercial product of insurance, it clearly falls within well-established constitutional precedents and principles, despite the druthers of those who wish for the versions of constitutional law that prevailed before the Great Depression and the Civil War. A more complete treatment of this topic can be found in my paper for the O’Neill Institute’s Legal Solutions Project, “The Constitutionality of Mandates to Purchase Health Insurance.”
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.