Author's Note: In light of Thursday’s Supreme Court decision to uphold the Affordable Care Act’s insurance mandate on the basis of Congress’s taxing power rather than the Commerce Clause, a slightly modified reprise of this November 27, 2009, column seems appropriate. Note the part about the Supreme Court’s long-standing position that Congress may regulate conduct through the tax system.
Ruth Marcus, Washington Post op-ed writer, tried to make a constitutional case for the individual health insurance mandate that Congress will surely pass before the year is over. She offered two grounds, the Commerce Clause, which is specified in Senate Majority Leader Harry Reid’s bill, and the taxing power.
On the first she writes:
Spending on health care consumes 16 percent–and growing–of the 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.
. . . [S]ince the New Deal, the Supreme Court has interpreted this authority to cover local activities with national implications.
I won’t repeat what I wrote previously about this strained argument. I don’t agree with the constitutionalists who insist that the Commerce Clause was meant to be a narrow power intended only to create a free-trade zone among the states. In the Federalist Papers Alexander Hamilton complained that tariffs were too low under the Articles of Confederation, and in fact the states did not block one another’s products. Historian William Crosskey makes a powerful case that the clause was intended by the leading framers as a general power to regulate economic activity, intra- and interstate. Moreover, the Antifederalists warned us (and James Madison later agreed) that the Constitution did not really establish a government of “few and defined” powers. (See my “The Constitution or Liberty” and “Was the Constitution Really Meant to Constrain the Government?” )
Nevertheless, there is a distinction between regulating commerce and compelling everyone to buy a product offered commercially. It’s a stretch to say such compulsion is permitted if it is connected to a congressional effort with respect to interstate commerce. Even Marcus seems to sense the stretch:
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. . . .
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.
So why can’t Congress order us to shop for the sake of “the economy”? Health insurance seems different to her, but it doesn’t seem different to me. How will it seem to the nine Supreme Court justices?
Let’s not forget, by the way, that Congress could reform the medical and medical-insurance without imposing a mandate by simply removing all barriers to competition. It would be nice if we could count on the court, at the very least, to forbid Congress from achieving a goal by means that violate freedom if means are available that do not. But let’s hold our breath.
The Taxing Power
On to the justification for the mandate via taxing power. Marcus writes: