Would Mandatory Health Insurance be Unconstitutional?

Damon W. Root | September 18, 2009

Former Justice Department attorneys David B. Rivkin Jr. and Lee A. Casey say yes. As they argue in today's Wall Street Journal:

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such "activities, taken in the aggregate, substantially affect interstate commerce."

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Of course, a health-care mandate would not regulate any "activity," such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Law professor and Volokh Conspiracy blogger Jonathan Adler takes a different view:

There is a strong temptation to believe that every onerous or oppressive government policy is unconstitutional Were it only so. Even were the federal government confined to those powers expressly enumerated in the text, it would retain ample ability to enact many bad ideas into law, and current precedent is far more permissive. Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts.

Comments

bubba|9.18.09 @ 12:25PM|#

Wouldn't it be so much easier, cheaper and constitutional to simply deny medical treatment to those who are both uninsured and are unwilling/unable to pay cash?

But that would be "mean" and would also deny the government an excuse to meddle in our lives.

|9.18.09 @ 12:27PM|#

"Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts."

But by the same token, everyone who has sworn an oath to uphold, protect, and defend the Constitution ought to say "no" when confronted by legislation that he or she believes to be unconstitutional -- not wave it by and trust in the courts to sort things out later.

When was the last time a President simply vetoed legislation because it contained unconstitutional provisions -- instead of approving it with a "signing statement" identifying the likely unconstitutional parts?

T|9.18.09 @ 12:29PM|#

Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts.

True dat. I wasn't terribly worried when the unholy abortion that is McCain-Feingold was passed and signed because I figured SCOTUS would knock that silly bullshit back to the woods where it belonged. So I'm a little less inclined to think SCOTUS will knock something down, especially after Kelo and Raich. Kill it now and we won't have to worry.

Especially since some clusterfuck like health care has an excellent chance of the courts refusing to grant anyone standing to sue in the first place.

pilight|9.18.09 @ 12:30PM|#

I'm puzzled as to how this would affect interstate commerce, considering that it's illegal to purchase health insurance from another state.

|9.18.09 @ 12:31PM|#

Each branch has an independent and separate obligation to uphold the Constitution. Otherwise, what is the point of checks and balances?

James J.B.|9.18.09 @ 12:31PM|#

Oh you silly rubes!
As if "constitutional" even matters at all anymore.

CaptainSmartass|9.18.09 @ 12:32PM|#

Wouldn't a requirement for health insurance be an unfunded mandate on the people, and as such be blatantly unconstitutional on its face?

John Tagliaferro|9.18.09 @ 12:40PM|#

JJB beat me to my comment.

Rimfax|9.18.09 @ 12:41PM|#

NPR featured a debate between two economists over the public option. Both agreed that it was a good idea. Way to go NPR!

(Their only disagreement was over whether or not it would save money.)

|9.18.09 @ 12:46PM|#

Essentially the argument boils down to: "Certainly under a reasonable reading of the Constitution, it would be unconstitutional. But the courts haven't ruled that way in a long time."

It's going to depend a lot on whether your idea of "UnConstitutional" means "what the Supreme Court says right now" or "according to a particular theory that I and others subscribe to." The former is the practical definition, but people accepting theories can be used to change it.

Kevin|9.18.09 @ 12:47PM|#

Doctors and nurses are licensed by states, correct? Thus, not interstate commerce.

|9.18.09 @ 12:52PM|#

Wouldn't a requirement for health insurance be an unfunded mandate on the people, and as such be blatantly unconstitutional on its face?

Not "so long as there is a rational basis to believe that such 'activities, taken in the aggregate, substantially affect interstate commerce.'"

Essentially, the SCOTUS has revoked the notion that ours is a government of limited, enumerated powers. This definition encompasses activities that can take place entirely within your bedroom and never involved, directly or indirectly, any commercial activity whatsoever.

After all, I can grow pot in my closet, smoke it in my bedroom, and the SCOTUS has nonetheless said it involves interstate commerce.

I fail to see how this "involves any economic activity" (per Lopez), but in Raich the SCOTUS said it didn't care.

robc|9.18.09 @ 12:54PM|#

JAM,

Madison, I think.

|9.18.09 @ 12:57PM|#

If a person can have the wheat grown on their own property for their own use can be regulated because he then wouldn't be in the market to purchase wheat, thus lowering demand across state lines, than any other economic activity can be construes as covered under the interstate commerce clause.

As much bull shit as that is, it is the point that we have allowed ourselves to get to. We started out with sovereign states and a federal government there for things the states couldn't do on their own. Now the states are just part of the federal structure. We really should give it up, hand over all of our rights, and bow to the feds. It's what we've been moving towards for many, many years anyway.

ed|9.18.09 @ 1:01PM|#

"Even were the federal government confined to those powers expressly enumerated in the text, it would retain ample ability to enact many bad ideas into law"

Time to dust off the powerful yet rarely utilized Ninth Amendment. "[H]aving now officially recognized that without certain unenumerated rights, every enumerated right in the Constitution is less secure [see Griswold v. Connecticut, 1965], the Supreme Court cannot legally deny the fundamental right which is the source of all others: the right to one's own life."* Surely the right to one's own life, and the federal government's attempt to undermine that most fundamental right, is of paramount importance in the health care debate.

*from The Constitution And The Draft
Henry Mark Holzer, Phyllis Holzer, 1967

Gilbert Martin|9.18.09 @ 1:22PM|#

"Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts."

Who said anyone was "depending" on it. The court option wouldn't come into play until AFTER it had been enacted anyway. Only then would anyone have grounds to sue in the first place.

It is merely another option to attempt to block it if the legislative derailment doesn't work. There is no reason NOT to try it after that.

Gilbert Martin|9.18.09 @ 1:24PM|#

"There is a strong temptation to believe that every onerous or oppressive government policy is unconstitutional Were it only so."

It IS so for any law enacted on the basis that Constitition allows regulation of anything that has "an effect" on interstate commerce - because that isn't what the Constitution actually says.

¢|9.18.09 @ 1:26PM|#

Oh you silly rubes!
As if "constitutional" even matters at all anymore.

Holy shit. We just got a comment from the late 1780s.

|9.18.09 @ 1:31PM|#

A comment that I hear in my daily conversations with liberals.

|9.18.09 @ 1:39PM|#

"" Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts."""

I agree there.

"""Doctors and nurses are licensed by states, correct? Thus, not interstate commerce"""

True, but you also must have a National Provider ID too. That's fed. You also have to have a DEA license to prescribe, that's fed too. If you accept Medicare insurance, that's fed. Point being the feds have been deep in the medical realm for decades.

But I think the central question is can the feds mandate you to purchase a service. We have accepted the notion that state governments can mandate services if you do certain things, like auto insurance for cars. People have the option not to drive. Since I live in NYC, I don't have a car and don't have auto insurance. But to mandate you purchase a service just becuase you live, that's new. Well outside of the tax realm.

So, I would think the only way they could do it is by tax. The government would provide the service and we would pay via the tax structure. I don't think that will happen.

Of course, blackmailing states to comply with federal desires isn't illegal. So they have that option. That assumes the states have the right to mandate health insurance.

James J. B.|9.18.09 @ 1:53PM|#

I was being facetious.

Jerry|9.18.09 @ 1:57PM|#

I've worked in Medical Billing for 26 years now so have some experience with interactions between Medical Providers and the Insurance companies.

As to Insurance not being Interstate, consider the following scenario.

You, living in BlueState and having insurance through NeverPayInsurance that is chartered to operate in BlueState, are on vacation in far away RedLand and have a FallDownGoBoom and visit WoeIsMe Emergency Room.

In normal circumstances, the medical providers knowing about your NeverPayInsurance send claims to them and only after receiving payment from the insurance carrier do they bill you for any applicable co-insurance. Here you have commerce, sending of claims and receiving payment for same, that crosses state boundaries.

Doesn't this qualify as Interstate commerce and is thus something that can be regulated at the Federal Level?

|9.18.09 @ 1:59PM|#

"""It IS so for any law enacted on the basis that Constitition allows regulation of anything that has "an effect" on interstate commerce - because that isn't what the Constitution actually says."""

When has what the "Constitution actually says" mattered other than sometimes at SCOTUS?

The government doesn't care, the cops don't care, and your neightbor probably doesn't care.

|9.18.09 @ 2:02PM|#

Would Mandatory Health Insurance be Unconstitutional?

Would that be an impediment?

John Tagliaferro|9.18.09 @ 2:06PM|#

Opponents of current health care reform proposals should defeat them the old fashioned way, through the political process, and not depend upon salvation from the courts dueling.

FTFY

juris imprudent|9.18.09 @ 2:08PM|#

Doctors and nurses are licensed by states, correct? Thus, not interstate commerce.

Yeah, and medical marijuana in California is still Schedule I. So?

That is Adler's point. We have only the Constitution that SCotUS will give us - not the one that any of us can actually read.

And even though no one is being prosecuted under it, the law that was invalidated in Lopez (gun free schools) was re-enacted by Congress with the proper incantation to commerce (which was the real defect in the original law, not that it was out of scope period, but it had failed to use the proper language tying it 'interstate commerce').

Alice Bowie|9.18.09 @ 2:11PM|#

Mandatory Healthcare is CLEARLY Unconstitutional

|9.18.09 @ 2:14PM|#

Part of the point that Jerry, and our government missed is that the commerce clause wasn't meant to be an excuse to take over anything that involves interstate commerce. It was meant as an authorization for the feds to manage interactions between states in order to keep things fair, and streamlined.

Sure, as I said earlier, any activity that involves the choice to purchase, or not, a good or service can be construed as impacting interstate commerce. However that doesn't mean that the feds have the right to control it. The call is to provide a reasonable framework within which interstate commerce can take place.

Gilbert Martin|9.18.09 @ 2:17PM|#

"In normal circumstances, the medical providers knowing about your NeverPayInsurance send claims to them and only after receiving payment from the insurance carrier do they bill you for any applicable co-insurance. Here you have commerce, sending of claims and receiving payment for same, that crosses state boundaries"

That's beside the point.

The point isn't that the mechanics of processing insurance claims involves crossing state lines.

The point is that the government will be MANDATING someone to engage in a particular form of commerce whether they want to or not.

The Gobbler|9.18.09 @ 2:24PM|#

"I've worked in Medical Billing for 26 years now"

Condolences to you.

|9.18.09 @ 2:31PM|#

Doesn't this qualify as Interstate commerce and is thus something that can be regulated at the Federal Level?

Let's go to the videotape:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

First, its interesting that the interstate commerce clause is stuck in between two clauses that apply to sovereign entities (foreign nations and Indian tribes).

Second, its interesting that it says "among" the several states.

This terminology makes you think that maybe this clause isn't really intended to cover economic activity that occurs under the jurisdiction of a foreign nation/Indian tribe/state, but is instead intended to give the federal government the authority to set the terms and conditions of commerce (that is, trade) "among" these entities.

Note that the grant of power "to regulate commerce" is exactly the same for each of the three areas that it is applied to. Why would this single grant of power be read differently, then, depending on whether it is applied to the first, second, or third items on the list?

The Commerce Clause clearly gives the national government no jurisdiction over economic activity within a foreign nation. Why, then, would it give jurisdiction over economic activity within a state?

Let's say I have a widget factory in X, subject to the jurisdiction of X. The national government would have no jurisdiction over that factory under the Commerce Clause.

If I sell my widgets only in X, then the national government would have no jurisdiction over my commerce/trade in widgets, even if there is a national market in widgets and some of my competitors do have inter-state markets.

Even if I do sell widgets in two states, that doesn't give the national government over my factory or my widgets, only over my commerce in widgets. Its called the commerce clause, not the plenary economic activity clause. So, the government can pass laws on the commerce or trade in widgets, but not the production or use of widgets, under the Commerce Clause.

With me so far?

Wicks Cherrycoke|9.18.09 @ 2:32PM|#

"Unconstitutional" is a code word for racism!

John Tagliaferro|9.18.09 @ 2:33PM|#

First, its interesting that the interstate commerce clause is stuck in between two clauses that apply to sovereign entities (foreign nations and Indian tribes).

The States are sovreign too. It is a set of three types of sovreigns.

|9.18.09 @ 2:40PM|#

R C Dean, well said.

|9.18.09 @ 3:09PM|#

First, its interesting that the interstate commerce clause is stuck in between two clauses that apply to sovereign entities (foreign nations and Indian tribes).

The States are sovreign too. It is a set of three types of sovreigns.

But the mainstream view is that the States are not sovereign entities and that persons residing in the States are subject to regulation of activities that do not cross state lines by the Federal government.

R C Dean's comment is interesting because the commerce clause lists foreign Nations, the several States, and Indian Tribes (note that all three are capitalized; this could be coincidental or deliberately chosen to denote equivalence in stature, but I digress...). Combine this with the Wickard case and take this alternative scenario: Hans Wickard grows more wheat than is allowed under an American law saying that all farmers cannot produce more than X bushels of wheat per year, but his wheat is used only for his own consumption in Germany. Administration lawyers argue that even though he is not engaged in commerce among foreign nations, his consumption of his own wheat affects international commerce by reducing the supply available on the world market and/or decreasing demand for non-Wickard wheat (because he's eating his own wheat rather than his American cousin Joe Wickard's wheat). So the commerce clause allows Congress to impose a quota on Hans's (and every other wheat farmer's) wheat production and if that quota is violated, he is subject to arrest and prosecution by the US government.

This is absurd, of course, but it is the logic of using the commerce clause on Foreign Nations and its citizens in the same way that it is used on the citizens of the several States. Now, the commerce clause does allow for the US government to set a quota on the amount of wheat coming from Germany into America, but not to limit the amount of wheat that can be grown in Germany generally. I also think that the federal government is allowed to tell Roscoe Wickard that he cannot sell/transport any of his wheat to people other than Ohioans (his home state). They just can't tell him that he is prohibited from growing more than X bushels of wheat or he can only sell X bushels of wheat to fellow Ohioans because the goods are not moving across state lines.

|9.18.09 @ 3:14PM|#

Oops, got my Wickard and Filburn's switched. Glad it's Friday!

|9.18.09 @ 3:33PM|#

It should be easy enough to defeat the insurance mandate simply by publicizing it widely enough.

Just take out TV ads saying "Hey people, the DEmocrats want to FORCE YOU to buy insurance." And then point out how much insurance costs. And the fines for not having insurance.

Maybe add something about the extent of the "mandatory minimum" insurance - must cover everything from dental, to vision, to preventive care, to prescription drugs. In other words, it would be illegal for ANYONE in the ENTIRE COUNTRY to sell you a cheaper high-deductible plan.

Gilbert Martin|9.18.09 @ 3:45PM|#

"Just take out TV ads saying "Hey people, the DEmocrats want to FORCE YOU to buy insurance." And then point out how much insurance costs. And the fines for not having insurance."

Then you will be accused of creating racist TV ads . "Force you" of course is code langauge for a fear of a black president being in a position of authority over you.

And then they can bring in Maureen Dowd to "prove" it by claiming she heard some unspoken racist slurs indide her head when she saw it on TV.

|9.18.09 @ 3:46PM|#

The Constitution is ignored by those on The Left & Right. It is used to embolden an argument when it agrees with their position and becomes "A living & breathing" document when it doesn't.

The so-called commence clause will continue to be used to nullify those parts of The Constitution that get in the way of growing and expanding government power and control.

|9.18.09 @ 3:47PM|#

"""Just take out TV ads saying "Hey people, the DEmocrats want to FORCE YOU to buy insurance." And then point out how much insurance costs. And the fines for not having insurance. ""

Only works if they are listening. Many are deaf and think what Obama gives them will be paid for by the rich.

Obama ran on the Robin Hood platform, the only thing that will convince them otherwise is when the money starts coming out of their pocket. By then, it's already law.

|9.18.09 @ 4:06PM|#

Meh. The argument strikes me as pointless.

Ask the next politico pushing the unconstitutional meme if that means they're willing to attack Medicare in the same breath, and how they voted on part D.

If they actually do it, they would get my vote. If not, well... seems like the rules of Washington are defined by the players.

The reasoning in that WSJ article is atrocious, though. It is weak even as a wish-fulfillment piece, never mind as an attempt to describe normative law. Not even a 1L could expect to get away with that.

0%|9.18.09 @ 4:36PM|#

A young woman died in hospital after waiting nearly two hours for a blood transfusion that could have saved her.
Sally Thompson, 20, lost two litres [4.22675284 pints] of blood when a doctor punctured her jugular vein after failing to follow NHS guidelines while inserting a drip into her neck.
Doctors at Manchester Royal Infirmary (MRI) made an urgent request for blood from the hospital's blood bank to help revive her--but none arrived before Sally died, one hour and 45 minutes later.
Now a coroner has ruled that the inability to supply the blood was a 'significant failure' that contributed to Sally's death. . . .
Sally's father, John Thompson, 62, said after the inquest into her death: 'This hospital is supposed to be the cornerstone of the NHS in Manchester, but they couldn't get any blood for two hours.

http://www.dailymail.co.uk/news/article-1214395/Woman-bleeds-death-doctor-accidentally-punctures-jugular--blood-available-transfusion.html

|9.18.09 @ 4:59PM|#

# robc | September 18, 2009, 12:54pm | #
# JAM,

# Madison, I think.

Thanks for the comeback. Somebody else recently told me Cleveland, but I haven't verified that one yet.

James Madison|9.18.09 @ 5:22PM|#

I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.

Grover Cleveland|9.18.09 @ 5:24PM|#

I can find no warrant for such an appropriation in the Constitution and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should I think be steadfastly resisted to the end that the lesson should be constantly enforced that though the people support the government the government should not support the people.

here

Grover Cleveland|9.18.09 @ 5:27PM|#

You know what, I'm not finished yet, motherfuckers!

The friendliness and charity of our countrymen can always be relied upon to relieve their fellow citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthen the bonds of a common brotherhood.

George W. Bush|9.18.09 @ 5:39PM|#

My job is to...

|9.18.09 @ 5:47PM|#

Oops, got my Wickard and Filburn's switched. Glad it's Friday!

Who cares, Hans and Roscoe Wickard were worth it.

Friday-Funny Thread Win

|9.18.09 @ 8:16PM|#

RC Dean: I really love your reasoning concerning the Commerce Clause. When you ask, "are you with me," I say, "HELL YES! When do we march on DC?" Because I think that an ugly mob is the only thing that will frighten the Beltway Bullies enough to quit abusing the Commerce Clause and rediscover the idea of states of autonomous and near-sovereign entities.

But on the other hand, the States are bound by the supremacy clause of the Constitution, in a way that foreign nations and Indian tribes are not. If the United States Federal government determines -- however mistakenly -- that growing wheat or cannabis on one's own property for one's own consumption, or doing business with a State chartered insurance company, operating inside the State, to arrange for medical services provided within the State by State residents who are State-licensed providers, is somehow "interstate commerce," well then, the Constitution provides for Federal regulation of said commerce and the States can do nothing about it.

We seem to have at least two problems:

1) Courts that love to engage in semantic and rhetorical gymnastics -- to the point of absurdity -- in the defense of federal assertions of authority and the ever-widening scope of that authority.

2) No unambiguous definition of "Commerce" in the Constitution that, if it existed, might take a number of at least the most egregious and silly federal assertions of authority off the table.

I truly believe that, for the survival of any nation that the Founders might recognize as their own "United States of America," not to mention that nation's goal of liberty for all, Wickard and Raich must be overturned. I doubt that future courts will do anything other than further entrench and perpetuate the anti-logic of those decisions. So I really think that we need another Constitutional Amendment, to clarify and constrain the Commerce Clause. Perhaps it is too late to close that huge barn door, but what kind of Americans would we be, not to at least try?

|9.18.09 @ 8:17PM|#

"the idea of states of autonomous"

xxx the idea of States AS autonomous...

KipEsquire|9.18.09 @ 11:59PM|#

Wickard was in fact a wheat farmer; this would be akin to ordering a 1930s New York tenement immigrant to grow his own wheat.

Meanwhile, if the federal government has some imagined Article I authority to order you to have health insurance, then it must also have the authority to order you to morning calisthenics. "To reduce future health care costs..." etc.

Land of the free?

Michael Ejercito|9.19.09 @ 11:51AM|#

If a person can have the wheat grown on their own property for their own use can be regulated because he then wouldn't be in the market to purchase wheat, thus lowering demand across state lines, than any other economic activity can be construes as covered under the interstate commerce clause.

So why can not sex be regulated by Congress?

After all, babies are a product, and babies definitely influence the market.

|9.19.09 @ 3:05PM|#

James Anderson Merritt | September 18, 2009, 8:16pm | #

When do we march on DC?" Because I think that an ugly mob is the only thing that will frighten the Beltway Bullies enough to quit abusing the Commerce Clause and rediscover the idea of states of autonomous and near-sovereign entities.

"A riot is an ugly thing. Unt, I think it's joost aboot time we had one!!"

|9.25.09 @ 11:54PM|#

Why the desire to get money from people who do not want insurance and who already pay all of their medical bills with cash? If we are worried about uninsured people who use services without paying, simply use the IRS (as threatened with mandatory insurance) to collect the money from the ACTUAL deadbeats and don't force the people who haven't done ANYTHING wrong to pay fines.