Some leading scholars and commentators–both Republican and Democrat–say that the answer is yes. Or at least, that the individual mandate which would require every American to purchase health insurance or pay a penalty tax is unconstitutional.
The Washington Post covered this over the weekend, with some thoughtful commentary from leading academics, and some not-so-thoughtful commentary from politicians. (Nancy Pelosi’s thoughtful response to the constitutional question–no joke–was: “Are you serious? Are you serious?”)
The objections generally come in two flavors. First is the commerce clause objection. The commerce clause (Art. I, Sec. 8, cl. 3) gives Congress the exclusive authority “[t]o regulate Commerce . . . among the several States.” The critics argue that a person’s failure to purchase health insurance (i.e., a person’s sitting on his hands and doing absolutely nothing) cannot possibly be commerce among the several states. “Ah yes,” say the proponents. “But what does the Constitution’s text have to do with it?” Supporters of the individual mandate argue that the Supreme Court has long endorsed congressional regulation of anything which “exerts a substantial economic effect on interstate commerce,” and that the failure of a sufficient volume of individuals to purchase health insurance would indeed exert such an effect.
[A question, then, for those of you playing along at home: Could not Congress impose a penalty on you for failing to purchase anything at all, regardless of necessity, desire, or value? Is there any reason that Congress could not, as Georgetown University Law Center professor Randy Barnett asks, require you to buy a new Chevy every year under threat of financial penalty?]
The second type of objection tends to be along the lines that the type of penalty imposed by these plans exceeds Congress’s ability to lay and collect taxes. The response here is that old paternalistic standby–that Congress can impose taxes to “provide for the . . . general Welfare of the United States.” (On this point, does anyone know whether the Supreme Court has ever addressed the significance of the qualifier “of the United States“?)
There are other possible objections, of course, both as matters of policy and of constitutional law. As to the former, even President Obama criticized the individual mandate concept when he was a candidate, and Daily Kos founder Markos Moulitsas has called the idea “unconscionable.” As to the latter, the general absence of any specific authority in Art. I, Sec. 8, the prohibition on laws impairing contracts in Art. I, Sec. 10 (the Supreme Court recently held that the freedom to associate must also include the freedom to not associate; by analogy, shouldn’t the freedom to contract include the freedom not to contract?), and the regulation of health as a matter traditionally left to states immediately come to mind.
A parting note on Pelosi: Regardless of how this individual mandate issue is decided, and regardless of whether an individual mandate is ultimately included in whatever reform is passed, don’t we deserve politicians who at least have some concept of what their job is and who are at least vaguely familiar with the rules under which they must play? It seems clear that she has never even considered the possibility that the law her chamber passed is inconsistent with the Constitution. Do you think she has any idea that Congress does not have carte blanche to pass whatever laws it pleases?
This post was written by Jeffrey M. Nye.
