The Health Care Mandate is Unconstitutional

I return to the topic I considered back in December. Since the power to compel individual citizens to purchase health insurance is obviously not among the enumerated powers in the Constitution, can it be inferred under the Commerce Clause and Necessary and Proper Clause? I expressed some doubts based on the fact that the word "proper," at least, had to impose some limits on Congress's power to have any meaning at all. I reached no conclusion. I do so here.

The Boston Globe has a couple of thought provoking pieces on the constitutionality of the health reform mandate. Here is Randy Barnett's opening paragraph:

IMAGINE THAT I tell you 100 things that you may not do tomorrow. For example, you may not run on a treadmill, eat broccoli, buy a car, and 97 other things. While your liberty would certainly be restricted, there would still be an infinite number of things you may still do. Now suppose I tell you 100 things that you must do tomorrow. You must run on a treadmill, eat broccoli, buy a car, and 97 other things. These 100 mandates could potentially occupy all your time and consume all your money. This helps illustrate why economic mandates are so much more onerous than either economic regulations or prohibitions, and why so dangerous an unenumerated congressional power should not be implied.

That is a very powerful point and one largely missing from the argument so far. Telling me I cannot enter a government building is much less restrictive (if not quite infinitely less) than telling me I have to do so.

Barnett acknowledges that the government can compel individuals to do certain things.

You must register for the military, you must submit a tax form, fill out a census form, and serve on a jury. And you must join a posse organized by a US marshal. But … each of these duties is necessary for the operation of government itself; and each has been widely recognized as inherent in being a citizen of the United States.

I would go a bit further than Barnett. These are existential obligations of citizenship; these examples are tied to explicit constitutional functions and without them, the existence of this constitutional order is in question. That tells strongly against the use of such compulsive powers for the purposes of ordinary legislation.

If Barnett's point weren't strong enough on its own, it received unintentional support from the pro-mandate argument by Lawrence Tribe.

As early as 1790, Congress penalized ship owners for failing to stock medications their crews might need. Some economic boycotts, which are obviously decisions not to purchase, have been banned by federal antitrust laws since 1890.

In 1942, the Supreme Court upheld a regulation supporting agricultural demand by "forcing some farmers into the market to buy wheat they could provide for themselves.'' And in 1964 the Court invoked the Commerce Clause to uphold federal laws compelling hotels and restaurants to serve people they wanted to exclude. All those measures carried out Congress's constitutional powers by affirmatively requiring people to act.

Each of these examples falls within Barnett's category of regulation. Like driving on the right side of the road, they are requirements that have to be met if you wish to enter into a certain business. None of them requires you to enter the business against your will.

The poverty of Tribe's examples is telling, as is his use of the appalling Wickard v. Filburn decision. Congress can, apparently, forbid a farmer to grow wheat for use on his farm and for the feeding of his family because this might have an indirect effect on interstate commerce. This means not that it might affect the price of wheat, but that it might interfere with Congress's attempt to raise the price of wheat by legislation. That is a commerce power unbridled by any conception of necessary and proper powers.

Apply the rule in Wickard to the health insurance mandate. Congress can not only forbid an activity but require one, if the failure to act has some conceivable effect on interstate commerce. Of course, that effect is the result of the legislation itself. Having required insurance companies to insure persons with pre-existing conditions, Congress basically abolished rational "insurance". The mandate is necessary to deal with free riders who might wait until they are sick to purchase insurance that they could not be denied. Without it, the system will probably collapse. The mandate is not there to prevent some public disaster. It is there to save the legislative project.

Ok. Now, since the government has bailed out the auto companies, why not just require every American to buy a car from GM? That would stimulate the economy! Here is the question: do you think that Congress could, under the Constitution, compel Americans to purchase a car just in order to make the auto bailout work? Yes or no?

If "yes", see Barnett above. Liberty is abolished. If "no", then can Congress compel every American to buy health insurance in order to make its health care reform legislation work? If "yes", then please explain the difference.

I have been uncomfortable with constitutional arguments against The Patient Protection and Affordable Health Care Act because I am a judicial minimalist. I prefer these questions to be settled in legislatures. I am now compelled to go the other way on this one. I am convinced by Randy Barnett's arguments against the mandate and even more by Lawrence Tribe's arguments in its favor.

Comments

[Stan Gibilisco]

This issue will be decided in the U.S. Supreme Court. I'll make a prediction: The justices cast their votes precisely according to their individual political leanings, "liberals" calling the health care mandate constitutional and "conservatives" calling it unconstitutional.

Although we can't go back in time and conduct the experiment with a Republican president and a Republican Congress having enacted the same bill, I'd bet that if we could make such a temporal odyssey, the "conservatives" would uphold the law and the "liberals" would reject it.

The decisions would be exactly reversed, as in an optical image mirror.

That notion spooks me. Does it spook you?

[Jimi]

Stan,

"having enacted the same bill"

Your expecting an answer to a hypothetical. I agree that the court will and would vote along Ideological lines, but in reality if Republicans had rammed thru a Health Care Bill, it would look much different from the one we have now.

[Donald Pay]

There is a butt load of ideological wishful thinking and ignorance of real life in the whole argument that government can't mandate certain actions or activities that requires purchase of products. It's done every day, and has been found perfectly constitutional. Just about every federal environmental law requires people to go out and purchase monitoring equipment/services, engineer various mitigation measure that require purchase of products and services and etc., etc.. OSHA requires purchase of safety equipment, etc. It would be nice if real life would once in a while intrude on discussions here.

[Ken Blanchard]

It would be even nicer, Donald, if you were capable of making distinctions. That one has been covered.

[Donald Pay]

Your distinctions don't mean squat in the real world. In order for the health care market to operate efficiently and effectively, everyone must be in the market. That's the end of the story.

[George Mason]

It is just more encroaching tyranny. Whether it be Obamacare, the Kelo decision the mandate to buy cfl's. It is a continuing erosion of freedom. Tea party anyone.

[KB]

Donald: thank you for your clarity. In order to make this legislation work, we have to have the mandate. The Constitution and liberty be damned. Now we understand one another.

[larry kurtz]

South Dakota should opt out. We Montanans prefer not to pay for obesity rates in the chemical toilet.

[Ed]

Isn't there yet another legal argument for the unconstitutionality of the mandate? Contract law? I'm aware that in PA, and I assume all other states have similar laws, that individuals cannot be compelled into entering into a contract with another private party. That they have free will to do so or not. When you sign up for health insurance you sing a contract. So can this be argued on the merits of contract law?

[Jimi]

Larry,

"in the chemical toilet."

I am assuming your refering to Pine Ridge?

[unicorn4711]

Prediction: 5 to 4, yes. The Constitution means what the SC says it means, as is stated in the Constitution. Obama's law holds.

[William]

Prediction: If unicorn4711 is correct, the legitimacy of the Supreme Court is further diminished and the issue becomes even more divisive, as an ever growing segment of the population reaches the conclusion that we are no longer a nation of laws based upon our Constitution, but a nation of arbitrary rulings by an increasingly remote "elite". The fiscal crisis facing us guarantees that government cannot afford to implement the legislation and States that sought to have the law overturned as unconstitutional refuse to enact it as nullification efforts continue to gain popular support.

The economy is further weakened, as international bond markets realize the additional stress enactment of "Obamacare" places on an already sluggish economy which increases the cost of US borrowing, the Fed enacts QE 4 further fueling inflation, while government policies and "disturbances" in the Middle East continue to limit supplies of oil, the unemployment rate rises above 11% as even more discouraged workers exit the job market entirely and are no longer counted in the official statistics.

California and Illinois declare bankruptcy, as they cannot meet current payments and are unable to sell bonds to finance ongoing expenses. They seek Federal funding for "emergency operations".

"Social unrest" spreads throughout major urban areas, while subsistence farming and bartering become common in rural states.

President Obama convenes an emergency joint session of House and Senate leadership to meet with the White House in order to declare a state of emergency, but has VP Biden preside over the meeting. President Obama breaks 90 during his round at the Andrews Air Force Base golf course.

Welcome to the Thunderdome...

[Chamomile]

You've got to be kidding me-it's so trapnsarntely clear now!

[Guilherme]

Though it might be a legal precedent, there are ieusss beyond precedent that make me unhappy with the current healthcare reform. While uninsured I was diagnosed with a chronic illness. Because of it, I fall into my state's medicaid pool with a large spend-down instead of being eligible to purchase on exchanges (according to my state's method of handling people like me ). My state is NOTORIOUS for not paying anyone who is a Medicaid patient, so I can find no specialists who will actually accept it as coverage. So, where it actually puts me for any practical purposes is paying nearly $500/month for individual health insurance and STILL paying $220 for office visits. Not sure if/how my meds would be covered. In the end, though, it's a losing proposition. My husband's company offered him insurance, anticipating that they would be required to do so anyhow. His insurance costs him $90.00/month. It has a $5000 annual maximum, requires he pay the first $50 of every office visit (with no insurance my current GP charges me only $48.00 as a cash patient), and has a cap of $400 for outpatient surgery and $1000 for in-patient hospital care.We decided there was no reason to even TRY to sign me up for it I would exhaust the policy within a month or two if it covered pre-existing conditions, and since it doesn't, and has such limited coverage, it also isn't really worth getting.If I had practical coverage available that I could afford with my current medical expenses, I would be interested in getting it. I was a covered, medically insured patient (and usually my family) from age 20 to age 39 with very few gaps in coverage. A company choosing to no longer provide health insurance to increase its bottom line is the biggest thing that put me in this situation, and my medical expenses make it difficult to afford $900/month premiums Are you suggesting that I should choose between insurance and food? Either way, either the Medicaid with high spend-down but still paying all my medical expenses to receive coverage, or buying a plan and waiting a year to get coverage, require choosing between affording my already pared-down lifestyle or selling my car, turning off all utilities but water and power (no heat), and living on macaroni and cheese with tuna. For some reason, it just doesn't seem fair or reasonable to me

[Aank]

ID theft is not just financial ppeloe. That crap you get through your credit card company doesn't do jack. They cover their card and their card only. Plus there are 5 types of identity theft and 4 of them have nothing to do with credit or credit cards. Only 26% of all identity thefts reported have any thing to do with financial stuff. I think it should be passed. There are forms of Identity theft that can kill you.

[Kaku]

Some states reqriue auto insurance while others don't. It's different, however, to whether or not the federal government can reqriue people to buy health insurance, not a state.The Constitution specifically defines the role of the federal government and then states that everything else will be handled by the states. While the federal government has really expanded its role since those days, it might be time to start making some of these cases.In addition, as anyone who has had to buy health insurance outside of an employer option knows, it is not auto insurance.Right now, we're paying about $100 a month for full insurance on two inexpensive cars, which isn't bad at all. It was a lot more in Mass. for one car. But this kind of forced payment, when it is forced, is not a health care payment of 10 or 12 times that amount. How do I know? I've done it before.When I had a job with a company that didn't offer health insurance, from 2005 to 2007, I was buying the least expensive plan I could find, Anthem BCBS. It was $917 a month for two adults and one child, with huge deductibles and co-pays. In the 2.5 years we had it, I think we used it a few times, and didn't get much coverage at all. Assuming now, with four people, it would be $1,200 or more, easy.How is a family that isn't filthy rich supposed to be able to afford that? They can't. This makes the Obamacare law, as it stands now, simply impossible to adhere to. And yet, in a couple of years, millions of people will be forced into this situation, lining the pockets of more insurance companies. It's basically corporate welfare enforced by the IRS. And it cost the Democrats control of Congress.

[Steven]

Health insurance coapenims make the majority of their money, from investment income from the reserves they invest. They only make about 2% off of the premiums they charge to their policyholders. The biggest problems, are increasing claims costs, increasing medical identity fraud, and increasing governmental regulation.

[Waido]

So true Chicago! You have the cihoce to have a car. I mean, I guess you have the cihoce to live or not, but if your dead then why would you need health insurance in the first place. I am a very health 21 year old and I don't have health insurance right now, and I don't want it. I will be FORCED to buy it in 2014 and I'm not okay with it, but it doesn't matter what the people are or aren't okay with now. If you don't have it you will get fined no matter what. You may be able to get away with no insurance on your car for years without getting caught, but its a little harder to get away with health insurance when your tax man has to see the receipt of you paying for it. Pathetic.

[Sara]

The auto insurance aalnogy doesn't fit because citizens can always exercise the right not to drive which does not endanger others, and therefore you don't need auto insurance. Sure, for folks in Wyoming or Los Angeles, life without a car is impractical, but in theory it can be done. On the other hand, you can't exercise a right not to be sick; illness is a fact of life for all people, and you therefore can pose a risk to others if you're contagious, or have a heart attack while driving, etc. To my thinking, this means the state' (federal, state, whoever) can require that you have insurance, because we have a social contract to protect each other from broad social risks illness and disease included. So the state should be able to mandate that you pay for insurance. Personally, I'd rather pay that in the form of taxes and deal with idiotic government bureaucrats, rather than the form of insurance premiums and idiotic insurance bureaucrats. But hey, details.

[Rupika]

That's what third party insurance is for. The pansgseer would be considered the third party and can sue the driver of the vehicle in which she was travelling. If there is negligence on the part of the driver and damages as a result then there could be a valid claim.xxR

[Ortis]

Stick with the major carriers weibtses. Avoid web sites not associated with a major carrier that offer comparative quotes. The quotes you receive will be estimates and the result will be that the policy will not be issued at the price that was quoted.You might also look to be sure you are on a secured site. look for https in the URL.P.S. Are you secure in your knowledge of the appropriate coverage. Lots more to auto insurance than price.