By Ruth Marcus
Is Congress going through the ordeal of trying to enact health-care reform only to have one of the main pillars — requiring individuals to obtain insurance — declared unconstitutional? An interesting debate for a constitutional law seminar. In the real world, not a big worry.
“This issue is not serious,” says Walter Dellinger, acting solicitor general during the Clinton administration.
But it’s being taken seriously in some quarters, so it’s worth explaining where the Constitution grants Congress the authority to impose an individual mandate. There are two short answers: the power to regulate interstate commerce and the power to tax.
Obamacare
First, the commerce clause. Spending on health care consumes 16 percent — and growing — of gross domestic product. There is hardly an individual activity with greater effect on commerce than the consumption of health care.
If you arrive uninsured at an emergency room, that has ripple effects through the national economy — driving up costs and premiums for everyone. If you go without insurance, that limits the size of the pool of insured individuals and — assuming you are young and healthy — drives up premium costs.
The clause empowers Congress “to regulate commerce . . . among the several states,” which may not sound terribly far-reaching. But since the New Deal, the Supreme Court has interpreted this authority to cover local activities with national implications.
In the 1942 case of Wickard v. Filburn, the justices ruled that even though an activity may “be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”
Thus, the court said, Congress was entitled to tell Roscoe Filburn how much wheat he could grow to feed his own chickens. Surely, then, Congress could require Filburn’s grandson to buy health insurance.
The court has narrowed the reach of the commerce clause in recent years — but also reaffirmed Wickard. The times it has found that Congress overstepped involved situations where the connection to interstate commerce was strained: carrying guns near schools or engaging in gender-based violence.
In United States v. Lopez, the court found that the Gun-Free School Zones Act “is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”
The individual mandate is “the mirror image of Lopez as a commerce clause case,” says Harvard Law School professor Laurence Tribe.
Granted, there is a difference between regulating an activity that an individual chooses to engage in and requiring an individual to purchase a good or service. Granted, too, there is a difference between making automobile insurance compulsory, as a condition of the privilege of driving a car, and making health insurance compulsory, whether an individual wants it or not.
But the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.
Congress clearly has authority to, in effect, require employees to purchase health insurance for their old age by imposing a payroll tax to fund Medicare. It’s odd for the conservatives bemoaning a government takeover of health care to complain about requiring that people turn to the private marketplace.
Which brings us to the alternative source of congressional authority, the “Power to lay and collect Taxes, Duties, Imposts and Excises.”
The individual mandate is to be administered through the tax code: On their forms, taxpayers will have to submit evidence of adequate insurance or, unless they qualify for a hardship exemption, pay a penalty.
Yale Law School professor Jack Balkin likens this to Congress raising money for environmental programs by taxing polluters. “Congress is entitled to raise revenues from persons whose actions specifically contribute to a social problem that Congress seeks to remedy through new government programs,” he concludes.
Balkin cites a 1950 Supreme Court case upholding a tax on marijuana distributors. “It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed,” the court said. “The principle applies even though the revenue obtained is obviously negligible, or the revenue purpose of the tax may be secondary.”
Sounds like the individual mandate to me.
By Christina Kapelczak
The Constitutionality of Mandated Healthcare: An Illegal Mandate
Ruth Marcus incorrectly states in her article, âAn Illegal Mandate? Noâ that two powers granted to the U.S. Congress in the Constitution, namely the power to regulate interstate commerce and the power to tax, allow Congress to constitutionally mandate healthcare.
The Commerce Clause
Proponents of OBAMACARE correctly claim that Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance, they argue, unquestionably have this effect on commerce, and may, therefore, be regulated by Congress. If this is the case, however, Congress would be able to regulate people, not because of who they are, what they do for a living, or whether they use the instrumentalities of interstate commerce such as interstate highways or telephone lines, but merely because they exist. Unlike Social Security, which is a tax on an individualâs earnings along with a promise of one day collecting benefits, individuals will be forced to pay for a service that they may not want to have or to use so that when their neighbor visits the doctor he doesnât have to pay for the visit. With this unprecedented expansion of federal power, the federal government could begin forcing us to buy a whole host of things and services we may not want without having the constitutional justification for doing so. Not only that, but under current federal law, insurers are barred from selling insurance out of state[1] because healthcare is traditionally left to the states under the police powers granted to them by the Tenth Amendment to the Constitution. Not only would OBAMACARE be a violation of these duties that have been enumerated to the States by the United States Constitution, but it would be a violation of the commerce clause power, the purported justification of this action to begin with, because Congress has already barred health insurance from being an interstate commerce issue at all.
If OBAMACARE is enacted, we will lose our freedoms as Americans because there will be, effectively, no limit to the commerce powers of the federal government.
This was not, of course, the original plan of our Founding Fathers. One of the fundamental tenets underlying the Constitution of 1787 was that the federal government was a government of limited powers. Unlike the states, which had more general authority to regulate their citizens, the federal government was to be limited to those powers found within the four corners of the Constitution. In particular, Congress could exercise only that authority specifically granted to it by the people and the states.
The Power to Tax
In her article, Marcus states that, â[t]he principle applies even though the revenue obtained is obviously negligible, or the revenue purpose of the tax may be secondaryâ and reasons that this âsounds like an individual mandate to me.â Here, this is a fallacious argument because Ms. Marcus cites a Supreme Court case that was reversed[2] and argues that it is an individual mandate because it applied in a previous case to marijuana distributors.
Article I, § 8 of the Constitution states that âCongress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.â Thus, the power to tax does not empower action, rather the power to act is enumerated and limited.
United States v. Butler[3] concerned the constitutionality of the Agricultural Adjustment Act of 1933, which sought to stabilize production in agriculture by offering subsidies to farmers to limit their crops. By restricting the supply of agricultural products, Congress sought to ensure a fair practice and thus to encourage agricultural production. The Court declared the Agricultural Adjustment Act of 1933 in Butler, to be unconstitutional on the ground that it violated the Tenth Amendment because it regulated production and the regulation of production, which, according to the Court, was left to the states. This is similar to OBAMACARE because, as discussed above, regulation of health is one of the fundamental powers of the states. Thus, the power to tax does not allow Congress to mandate healthcare.
Conclusion
Based on the foregoing, government mandated healthcare is unconstitutional.
[1] http://online.wsj.com/article/SB10001424052970203917304574412793406386548.html
[2] United States v. Sanchez, 340 U.S. 42 (1950).
[3] United States v. Butler, 297 U.S. 1 (1936).
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