10.14.09

“Taking” Legal and Economic Liberties, Seriously?

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Constitutional opposition to an individual mandate is usually argued in terms of lack of federal power, but the real motivation is the feeling that a mandate violates individual rights. Opponents would be no less exorcised if a mandate came from the States, which generally have plenary authority over social and economic matters.

What basis might there be for an individual rights argument? Some legal analysts might want to use this occasion to resurrect the type of substantive due process thinking that began with the infamous Dred Scott decision and that led to striking down minimum wage and child labor laws. But, the modern Supreme Court is no more likely to embrace such economic liberties as it is to accept the polar opposite position that the Constitution requires government to protect health and economic security.

Under modern Constitutional law, the only hope for protecting economic interests against a government mandate is the Takings Clause. Might it apply to compulsory insurance? One closely-decided case provides a tantalizing possibility. Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), struck down a federal requirement that a former coal company provide health insurance to its long-retired workers. The fractured bare majority was based on a combination of rationales, including a Takings analysis that regarded this mandate as an excessive government regulation.

However, closer reading reveals the case to be inapposite. The central concern was over the law’s retroactivity – requiring substantial payments to mitigate costs of past enterprises by a company that had long since left the relevant business. Moreover, a majority of the Justices actually rejected the plurality’s Takings analysis – the four dissenters plus Justice Kennedy in concurrence.

Apart from this idiosyncratic decision, the Court has never applied a Takings analysis to the mere payment of money. Cash is regarded as “property” under the Takings Clause only when a discrete account is seized. Otherwise, imposing a financial obligation that can be paid out of any source of funds has never been subjected to a Takings analysis, since this is indistinguishable from simple taxation, or ordinary regulation – any form of which literally takes money.

Other Takings defenses include arguments that mandating insurance does not take money for “public use,” since the funds go to purchase private insurance. Moreover, the insurance policy one receives can be viewed as “just compensation” – something of equivalent value to the person who pays. None of these arguments is air tight since they have not been specifically endorsed by the Court. But they are formidable enough that any Takings attack would be highly unlikely to succeed with any more than one or two members of the Court.

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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.

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