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Response: Does Health Care Reform Violate the Real Constitution?

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In response to Does Health Care Reform Violate the Real Constitution? by Mark A. Hall

Mark is correct in identifying the individual mandate as the only component of the proposed health care reform legislation that raises a more than trivial constitutional question. The other elements of the legislation—insurance industry reforms, health insurance exchanges, the employer mandate, subsidies for Americans who cannot afford health insurance premiums, public plan choice, Medicaid expansions, and Medicare reforms are all constitutional beyond serious challenge under Supreme Court precedents dating back to the 1930s and 1940s. Only the question of whether or not Congress has the power to require individuals to purchase health insurance or pay a penalty is worth debating.

While it is worth debating, however, the answer to the question is clear. As Mark notes, the power of Congress under article I, section 8 of the Constitution to regulate commerce “among the several states” authorizes a federal statute requiring individuals to purchase health insurance. The Court in Gonzales v. Raich (2005), its most recent extended consideration of the scope of the Commerce Clause, upheld the authority of Congress to prohibit the cultivation of marijuana “for personal medical purposes on the advice of a physician.” The Court distinguished two earlier cases, Lopez and Morrison, in which former Justice Rhenquist, writing for a 5-4 Court, had held that the Commerce Clause does not authorize Congress to pass non-economic criminal laws. The Court noted that those cases had involved “brief, single-subject” criminal statutes rather than a complex, reticulate scheme to regulate “the production, distribution, and consumption of commodities,” like illicit drugs, at issue in Raich.

As Mark notes, the Court has recognized for over a half century that insurance is economic activity. The health insurance reform legislation Congress is contemplating is as least as complex as the drug regulation scheme upheld in Raich, and the components of the reform legislation are at least as mutually dependent. The individual mandate is a key component of the reform scheme, as underwriting reform is not possible if healthy individuals can opt out of the risk pool at will.

The Court also noted in Raich, again citing precedents that go back to the 1930s, that the Commerce Clause not only authorizes Congress to regulate the channels and instrumentalities of interstate commerce, but also intrastate “activities that substantially affect interstate commerce.” (Justice Scalia, concurring, opined that more precisely, “Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce . . . derives from the Necessary and Proper Clause,” because this authority is necessary to implement the power of Congress to regulate commerce among the states.) Thus, even though the individual purchase of insurance takes place locally, it is still, like growing marijuana for personal medical use, subject to regulation under the Interstate Commerce clause.

Three justices dissented in Raich. Two of them are no longer on the Court. In 2007, their replacements joined the majority in Gonzales v. Carhart, upholding the federal Partial Birth Abortion Ban Act as a proper exercise of Congress’ legislative power “under the Commerce Clause, to regulate the medical profession.” If the power of Congress to regulate interstate commerce reaches into a doctor’s surgery to govern the most intimate of medical procedures, it certainly permits a law that requires individuals to purchase health insurance rather than free-loading on their insured neighbors. I count only one reliable vote on the Court to the contrary.

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  • Tim Westmoreland says:

    For more discussion of this topic, see the panel discussion webcast of the Legal Solutions in Health Reform Project on April 27. It includes comments by Mark A. Hall, JD, Wake Forest University School of Law,
    Len Nichols, PhD, New America Foundation,
    Tom Miller, JD , American Enterprise Institute, and
    John McDonough, DrPH, MPA, Senate Committee on Health, Education, Labor and Pensions [HELP]. It can be found at

  • Health Affairs Blog says:

    […] more on this topic, see this post and this response on the blog of Georgetown University’s O’Neill Institute for National and Global […]

  • Soulbooks says:

    I support medical science, but I am against the benefits received by the medical profession for countless human diseases. Here, we should remember the ancient Chinese medical practice, the Confucian era. A doctor’s profit depended on community health, not sickness, as it is now.

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