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Is Making People Buy Health Insurance Constitutional?

Frank James

Is it constitutional for the federal government to force people to buy health insurance from private companies?

Conservatives argue it isn't and that the health-care overhaul proposal
being pushed through the Senate this week is fundamentally flawed
because it contains a mandate that everyone have health insurance

The Senate minority intends to force a procedural vote Wednesday on
the constitutionality question which they are expected to lose.

But Democrats are certain of the constitutionality of the legislation.

As The Wall Street Journal reports:

Republicans are forcing the Senate to vote Wednesday on
whether the Democrat-backed bill is unconstitutional. Sen. John Ensign
(R., Nev.) raised a point of order Tuesday against the bill, arguing
that the Constitution doesn't give Congress latitude to force Americans
to buy health coverage, as both the House and Senate bills do.

"What's next?" Mr. Ensign said. "Will we consider
legislation in the future requiring every American to buy a car? Will
we consider legislation in the future requiring every American to buy a

Mr. Ensign isn't expected to succeed. But the effort
dramatizes a criticism raised by Republicans and conservative
activists. Under the Senate and House bills, Americans who don't
receive health coverage through their employers must buy insurance if
they can afford it.

The "individual mandate" is part of broader legislation
designed to expand health-insurance coverage to tens of millions of
Americans. The bill offers tax subsidies to purchase insurance and
widens eligibility for Medicaid, the federal-state program that
provides health insurance to the poor.

Conservative critics contend that the provision violates
the Constitution's "takings clause," which says "private property
[cannot] be taken for public use, without just compensation."

Democrats counter that the mandate is necessary to make the
planned overhaul of the health-care system work, and ensure that as
many people as possible participate in the system. Under the Senate
bill, individuals who don't purchase coverage would face a financial
penalty up to $750.

Democrats say the courts have given Congress wide authority to impose rules under its powers to regulate interstate commerce.

"We feel very sound in our position," Mr. Reid said.

of course, has to sound confident about the constitutionality of the
individual mandate since he likely wouldn't get 60 votes to do
something he openly thought was unconstitutional.

But it's not like he's whistling in the dark. While the notion that
the government can force people to buy private insurance will offend
the sensibilities of many Americans, Reid can find any number of legal
experts who argue that, so long as Congress frames the language of the
law properly, such a mandate could pass a Supreme Court challenge.

The non-partisan Congressional Research Service prepared a report
that suggests that an individual mandate could pass Supreme Court
review under the power the Constitution's Article1 grants Congress to
tax and spend. An excerpt:

Certain health insurance mandate proposals could rely on
Congress's spending and taxing authority. For example, if Congress
chose to require individuals to have health insurance by levying a tax,
then using the revenue for funding health benefits, this could be
viewed as an appropriate use of Congress's taxing and spending power.
Or, if Congress were to require individuals to purchase health
insurance, and then enforce this requirement by conditioning receipt of
a tax benefit (e.g., a tax credit) on compliance, this also could be
seen as a legitimate exercise of Congress's taxing authority.
Similarly, if Congress were to enact a proposal under which individuals
who did not purchase health insurance were subject to a tax penalty
(e.g., a loss of a tax deduction), this also could be seen as valid
under this clause of the Constitution.

In addition, Congress's Spending Clause authority could be
invoked if a proposal to require individuals to purchase health
insurance involves state participation. Congress has frequently
promoted its policy goals by conditioning the receipt of federal funds
on state compliance with certain requirements. Accordingly, if Congress
were to condition payment of certain funds to states based on whether
that state requires its residents to have health insurance, this could
also be seen as acceptable under the Spending Clause. While the Court
has recognized that Congress cannot force states to take certain
courses of action because of state sovereignty protected under the
Tenth Amendment, the conditioning of funds can be a legitimate
inducement to get states to follow the will of Congress. Thus, if
Congress were to grant federal funds to states that enacted laws which
required individuals to purchase health insurance, this type of law
would likely be considered a legitimate use of Congress's spending
clause authority.

More iffy would be Congress's use of its power over interstate
commerce, the Constitution's Commerce Clause, as justification for
mandating that individuals have insurance.

Another excerpt from the CRS report:

Despite the breadth of powers that have been exercised
under the Commerce Clause, it is unclear whether the clause would
provide a solid constitutional foundation for legislation containing a
requirement to have health insurance. Whether such a requirement would
be constitutional under the Commerce Clause is perhaps the most
challenging question posed by such a proposal, as it is a novel issue
whether Congress may use this clause to require an individual to
purchase a good or a service.

Of course, the Supreme Court has a narrow but nonetheless real
conservative bias because of swing justice Anthony Kennedy's tendency
to side with the four ideological conservatives. So it seems safe to
say that the current court could find its way clear towards seeing the
situation more through the eyes of, say, conservative scholars than
Senate Majority Leader Reid's.

Indeed, a piece found on the conservative Heritage Foundation's website makes that very point:

Mandating that all private citizens enter into a contract
with a private company to purchase a good or service, or be punished by
a fine labeled a "tax," is unprecedented in American history. For this
reason, there are no Supreme Court decisions authorizing this exercise
of federal power. There are strong grounds to predict that the current
Court will not devise any new doctrines by which to uphold an
individual health insurance mandate. First and foremost, as already
mentioned, to uphold this exercise of power, the Supreme Court would
have to affirm for the first time in its history that Congress has a
general or plenary police power--a position the Court has repeatedly
refused to take.

We return to the initial question: is the mandate that individuals
have health insurance legal under the U.S. Constitution? The answer
appears to be that the Supreme Court will ultimately decide the matter.

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