Are Health Insurance Mandates Unconstitutional?

|

This is the intriguing question asked in a Christian Science Monitor op/ed by Loyola Law School professor Karl Manheim and Consumer Watchdog chairman Jamie Court. To wit:

The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.

The closest we come is when government imposes a condition on the grant of discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary – you don't have to drive a car or build a house. Nor do you have a constitutional right to do so….

A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine, or obtain treatment outside the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."

Requiring Person A to give money to Person B is a "taking," whether or not something of value is given in return. Let's say the state required every resident to buy milk, on the rationale that milk consumption benefits public health. That's either a constitutionally forbidden taking (of money) or a violation of due process.

These constitutional rights aren't absolute. Given a compelling enough reason, government can interfere with your person and property. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling.

We are not aware of any opt-outs for most people in the mandatory health insurance plans being discussed.

Manheim and Court suggest that a tax-financed single payer government health insurance scheme would meet constitutional muster.

Whole op/ed here.

My arguments (admittedly without any constitutional analysis) for mandatory private health insurance here.

I find it a bit ironic that an op/ed on health insurance appears in the Christian Science Monitor.

NEXT: Lemming of the BDA

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Mandatory health insurance would seem to run directly counter to the 1st Amendment. What if you are a faith healer and it is against your religion to seek medical care? Taking away child welfare issues, I don’t see how the government can have the authority to make you pay for something that is against your religion.

  2. I was thinking the same thing about the irony…

    Basically, however, the argument for a mandate is because those who think that universal health care is a good idea realize that a single-payer government system is just simply unpopular with the populace as a whole.

    With that out of the way, though, how often does the whole minor quibble about something being Constitutional or not faze a Congresscritter or Presidential candidate?

  3. The Constitution’s just another government regulation writ large telling us what we can and can’t do.

  4. I would think someone could make a good 13th amendment argument against mandated insurance.

  5. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling.

    That is not a true “opt-out,” as someone is still required to contribute money to a government school they aren’t using.

  6. “With that out of the way, though, how often does the whole minor quibble about something being Constitutional or not faze a Congresscritter or Presidential candidate?”

    Never. But it ought to faze libertarians.

  7. I dont see any irony. Of course Christian Scientists are going to oppose manditory insurance. It isnt ironic when it is exactly what you would expect.

    In fact, this is the exact opposite of irony.

  8. I would think someone could make a good 13th amendment argument against mandated insurance.

    Perhaps, but I’d say the 14th amendment argument against deprivation of property without due process is better, if only because by buying a service you aren’t *in servitude* regardless of whether it is voluntary. Servitude implies (at least to me) some notion of labor.

  9. Elemenope,

    I think there is a much stronger 13th amendment argument on the income tax. The income tax is legal via the 16th, but making ME fill it out is a 13th amendment violation. If the IRS had to fill out everyone’s forms, I bet they would be a lot simpler.

  10. robc: But the op/ed authors think that tax-financed government single payer health insurance is constitutionally OK.

  11. Am I not forced to purchase health insurance now? If not, is my “opt-out” to quit my job?

  12. But in such cases, the “mandate” is discretionary – you don’t have to drive a car or build a house. Nor do you have a constitutional right to do so….

    Actually, so far as I can tell I do have such a right. There are no powers delegated to the federal government over housing or driving, so those powers are reserved to the people. Since most people nowadays go on the principle that rights must be explicitly granted by the Constitution, but powers are nebulous, this is a losing argument, but I have such a right, even if it’s not a constitutional right.

    In theory. In practice, insisting on this is a fool’s game – I just go down and get my license like everyone else. 🙂

  13. Ron,

    But the op/ed authors think that tax-financed government single payer health insurance is constitutionally OK.

    THAT part might be ironic.

  14. How is it “ironic” that the Christian Science Monitor would publish an article questioning the constitutionality of forcing people to buy health insurance? I would note the complete absence of “irony”: Christian Science opposes what health insurance pays for.

    John —

    The mandate to buy health insurance does not run counter to the First Amendment in the case of a faith-healer any more than the mandate to pay for a war runs counter to the First Amendment in the case of a pacifist.

    The bigger problem comes when the government forces the faith-healer to use the insurance or the pacifist to fight in the war.

    But I am not sure the First Amendment is the offended constitutional principal. It is that, first, a Congressional mandate on how to spend your money is ultra vires (but so are Medicare, Medicaid and any “single-payer” scheme) , as well as a “taking” for which you are not compensated, justly or otherwise.

  15. The closest we come is when government imposes a condition on the grant of discretionary benefit or permit.

    The solution is obvious: life will now be a privilege granted by the state. In order to be allowed to live, you must buy health insurance.

  16. There are no powers delegated to the federal government over housing or driving, so those powers are reserved to the people.

    Umm…actually, reserved to the States. States have plenary discretion to regulate commerce within their borders (including, I would imagine, buying and selling houses and cars, and operating them).

    There is no federal driver’s license, so far as I know.

  17. Elemenope, grylliade,

    so those powers are reserved to the people.

    Umm…actually, reserved to the States.

    Reserved to the states or the people. The constitution doesnt distinguish, we get to fight it out on the state level.

  18. “The mandate to buy health insurance does not run counter to the First Amendment in the case of a faith-healer any more than the mandate to pay for a war runs counter to the First Amendment in the case of a pacifist.”

    Paying taxes is different than buying something. In the case of a pacifist, the government is making him pay taxes of which some portion of which go to the war. In this case you are forcing someone to directly purchase something they object to on religous grounds, no just pay into a general pool of money. What if the feds passed a home defense law and required everyone to purchase a handgun. That would violate pacifists’ rights just as requiring to buy insurance would violate religious rights.

  19. The constitution doesn’t distinguish, we get to fight it out on the state level.

    The 10th Amendment is one of those pieces of language that sucks so much (for clarity) I want to reach back in time who whoever wrote it (probably Madison) and slap the shit out of him.

    Honestly.

  20. What if the feds passed a home defense law and required everyone to purchase a handgun.

    You mean like Kennesaw, GA?

  21. Elemenope,

    I dont think the 10th is unclear. They are clearly saying “Not ours”. After that, they werent making the call.

  22. In addition to the Constitutional issues, there’s just the pure-grade stupidity of saying “the problem is, people can’t afford X, so the solution is, require people to buy X regardless.”

    Great. And we can end homelessness by requiring all people to rent an apartment, and end world hunger by requiring starving people to buy themselves some food, and end unemployment by requiring everybody to get a job.

  23. I don’t think the 10th is unclear. They are clearly saying “Not ours”. After that, they weren’t making the call.

    That’s precisely the problem. By not deciding, they left a nasty ambiguity. The law does not tolerate flat-out ambiguities well, and often when it’s not clear who gets something in the law (especially rights) the answer often practically becomes “neither”.

    And Madison knew better.

  24. That is not a true “opt-out,” as someone is still required to contribute money to a government school they aren’t using.

    I think you miss the author’s point. They are not talking about, nor apparently concerned with, “opt-outs” for taxpayer funded government programs — quite the opposite in fact, they’d rather opt everyone in to something like that. After all, as noted, they claim a single-payer government insurance would be not only constitutional, but better as well.

    If it isn’t clear from the post, from reading the op-ed it is obvious that the authors’ concern is not at all with the constitutionality of government powers to force health care on everyone, but rather to head off attempts to do it through private insurance firms instead of a single payer government run program.

  25. …the false assumption here is that the U.S. Constitution is an effective legal constraint upon the exercise of Federal power.

    It is not.

    The evidence is obvious & overwhelming since at least year 1861.

    Thus, “…the intriguing question” should be — why do ‘lawyers & consumer-advocates’ foolishly assume the Constitution imposes serious restraint on any form of Federal “mandates” (?)

  26. You could probably make a similar argument about every social program. (Social security, welfare, medicare, etc.) We all have to pay into it, and might not actually end up using or reaping the benefits of it.

  27. You could probably make a similar argument about every social program.

    Why, yes. Yes, you could.

  28. Are Health Insurance Mandates Unconstitutional?

    Uh, Why? Does that matter?

  29. You could probably make a similar argument about every social program. (Social security, welfare, medicare, etc.) We all have to pay into it, and might not actually end up using or reaping the benefits of it.

    Yes, as R.C. says, you could, except that unfortunately isn’t similar to the argument they are making. It is almost the opposite of the argument they are making.

    Thus, “…the intriguing question” should be — why do ‘lawyers & consumer-advocates’ foolishly assume the Constitution imposes serious restraint on any form of Federal “mandates” (?)

    They don’t, but it is convenient to claim they do so when it helps them to push for a taxpayer funded, government run, single-payer insurance program.

  30. Elemenope,

    That’s precisely the problem. By not deciding, they left a nasty ambiguity.

    What ambiguity? “Its not a federal problem, refer to state constitution/laws instead” is pretty non-ambiguous. They were creating a FEDERAL system, they werent trying to control what the states did. The Bill or Rights is a restriction on Federal Powers, they werent trying to divy up everything. Virginia might claim something as a state power while New Hampshire leaves it to the people. And thats okay.

  31. Opponents of a universal healthcare system:
    Why do you hate America, and poor children?

  32. We need to CUT THE INSURERS OUT OF THE HEALTH CARE LOOP

    I don’t mind being TAXED to pay into a healthcare fund that acts as a SINGLE PAYER for all health care costs.

    INSURANCE COMPANIES SELL INSURANCE NOT HEALTHCARE

  33. You could probably make a similar argument about every social program. (Social security, welfare, medicare, etc.) We all have to pay into it, and might not actually end up using or reaping the benefits of it.

    Not really, because the issue here isn’t that someone is being forced to pay something.

    The issue is who’s receiving the money.

    It’s constitutionally well settled that you can be taxed, and currently [unfortunately] judicially settled that the federal government can spend those tax dollars on pretty much whatever it wants.

    It’s not quite so well settled that you can be forced to pay an insurance company for a product you don’t want.

    I think the Constitutional issue is only murky because some issues surrounding equal protection and titles of nobility aren’t very well spelled out in the Constitution, probably because to the founding generation the issues were too obvious to need elucidation. We didn’t establish a system that specifically avoided titles of nobility because we wanted to avoid the vanity of the titles themselves – we established that system to avoid having a group of citizens who possessed tangible benefits as a result of titles. In other words, it should be irrelevant to our concept of equality if someone calls himself “Prince” or Duke” – it’s only relevant if there is some legal benefit that goes along with those titles [such as special tax status, special court status, or the right to receive some compulsory payment or service from non-members of the noble class].

    And it’s pretty clear – to me, at least – that mandatory private health insurance schemes, combined with state or federal licensing of insurance providers, creates a situation where some level of government is awarding a title [“licensed insurance provider”] and creating serfs [“persons required to get insurance from licensed insurance providers”]. This can’t be anything other than a title of nobility, and the fact that it isn’t recognized as such is only due to the limited imagination of the citizenry, and its limited ability to apply archaic concepts to modern situations.

  34. It’s constitutionally well settled that you can be taxed, and currently [unfortunately] judicially settled that the federal government can spend those tax dollars on pretty much whatever it wants.

    Really? So they could use them to establish a state religion?

    Government health care has a very bad reputation, so the socialists are tying to get around that by going through the insurance companies. The problem with that is it requires more coercion.

    The current system is flawed precisely because insurance companies no longer sell “insurance” but socialized risk and reverse annuities. Any socialist solution will make the problem worse.

    What we need to move toward is a system where patients have choices in regards to cost. There’s no substitute for the marketplace.

  35. Umm…actually, reserved to the States. States have plenary discretion to regulate commerce within their borders (including, I would imagine, buying and selling houses and cars, and operating them).

    Sorry, I should have been clearer. I know that the 10th doesn’t distinguish between the states and the people. I personally feel that the restrictions placed on driving are absurd and arbitrary, and that, given the importance of driving in 95 % of the country, it is essentially a right. I think that driver’s licenses should be shall-issue, like concealed carry permits. Unless there’s a compelling reason for the government to prevent me from driving (like multiple DUI’s over 0.15 or somesuch) and I can pass a driving test, that’s all that’s necessary. We don’t require mandatory liability insurance for firearm owners; why for car drivers? You essentially can’t hold down a job in many (if not most) areas of the country without a car, and often the jobs you can get without a car are the kind you don’t earn enough to get a car to get a better job. I just don’t see how driving (within the limits of respecting others’ ability to drive on the same roads) isn’t a basic right*, given the configuration of modern society.

    * Note that I’m not stumping for any “buy everyone a car” program or anything, just the basic ability to drive without interference based on unreasonable middle-class assumptions.

  36. http://www.resetamerica.com has some interesting information from Michael Jingozian for President including his opposition to mandatory healthcare. check it out!!!!!!!!!!!

  37. Really? So they could use them to establish a state religion?

    Right, that’s why I said “pretty much”.

    Because once you get by a couple of obvious ones – like a state religion, or extermination camps – the list of things the federal government can’t spend its money on is pretty damn short.

  38. We need to CUT THE INSURERS OUT OF THE HEALTH CARE LOOP

    I don’t mind being TAXED to pay into a healthcare fund that acts as a SINGLE PAYER for all health care costs.

    It seems to me that you can be taxed to pay into a health care fund that acts as a single payer for all your health care costs without forcing everyone else into the same system. So you can cut the insurers our of your health care loop while letting everyone else retain whatever insurance and health care arrangements they want.

    Fair enough?

  39. The issue is who’s receiving the money.

    No, the issue is due process.

    “Requiring Person A to give money to Person B is a “taking,” whether or not something of value is given in return.”

    Is that not what social programs are? With a healthcare mandate, we’d be forced to buy healthcare. We’re currently forced to buy into Social Security and other programs. There’s no opt-out option like the writer said about private or homeschooling in terms of vaccines.

  40. I don’t see how the government can have the authority to make you pay for something that is against your religion.

    Oh…I can think of a few

  41. And if I refuse to pay? How’s prison healthcare?

  42. Question:
    Opponents of a universal healthcare system:
    Why do you hate America, and poor children?

    Answer:
    Because the Parents of poor children in America
    – didn’t do their homework
    – didn’t pay attention to the teacher in class
    – didn’t pray to Jesus for a better future.

    As a result, the parents of poor children ended up getting jobs as:
    – Bus drivers
    – Janitors
    – Policemen
    – Security guards
    – Secretaries
    – Clerks
    – Factory workers
    – auto mechanics

    America needs poor people (especially children) so that they can be used as examples.

  43. Could one of you nice, wordy, writers at Reason write the same sort of thing about mandated automobile insurance? I have thought of writing about it, but can not think of how to stretch it out to magazine-length, or even MSM television length, for that matter.

  44. Guy,

    Back in the late 90s (IIRC) Liberty magazine had a good article on mandated auto insurance and layed out alternative plans.

    The one I remember was basically a you/your insurer is fully responsible for damage to your car, regardless of how it is damaged. If someone hits you, your insurance pays.

    I guess under that scenario you could sue the person who caused the damage (maybe only in an intentional situation?), but it would be them you were sueing, not their insurance, because their insurance (if they had it) would only cover their own car anyway.

    In that scenario, car insurance wouldnt be mandatory because everyone would be responsible for themselves, so you could choose to insure or not.

  45. Wouldn’t mandated auto insurance fall under the “liability” category?

    Now mandated health liability insurance – that would be innovative.

    If YOU made ME sick – you pay. Interesting – I could file suit against the sicko I flew next to last week if I contracted his illness.

  46. A “bit” ironic, maybe, but the CSMonitor is officially not religious (http://www.csmonitor.com/aboutus/about_the_monitor.html), and the contributors to wikipedia don’t seem to think it is either (http://en.wikipedia.org/wiki/Christian_Science_Monitor). In any event, linking to a description of the religion does not really explain why the newspaper’s publication of a health insurance op-ed is “ironic” when the newspaper’s content is, in the relevant ways, undetermined by the religion.

  47. I think there is a much stronger 13th amendment argument on the income tax. The income tax is legal via the 16th, but making ME fill it out is a 13th amendment violation. If the IRS had to fill out everyone’s forms, I bet they would be a lot simpler.

    No fan of the income tax here, but I think this is specifically why the tax code allows one to deduct the costs of filing taxes. See? It’s free!

  48. There are initiative petitions circulating in Arizona to amend the State Constitution to add:

    BECAUSE ALL PEOPLE SHOULD HAVE THE RIGHT TO MAKE DECISIONS ABOUT THEIR HEALTH CARE, NO LAW SHALL BE PASSED THAT RESTRICTS A PERSON’S FREEDOM OF CHOICE OF PRIVATE HEALTH CARE SYSTEMS OR PRIVATE PLANS OF ANY TYPE. NO LAW SHALL INTERFERE WITH A PERSON’S OR ENTITY’S RIGHT TO PAY DIRECTLY FOR LAWFUL MEDICAL SERVICES, NOR SHALL ANY LAW IMPOSE A PENALTY OR FINE, OF ANY TYPE, FOR CHOOSING TO OBTAIN OR DECLINE HEALTH CARE COVERAGE OR FOR PARTICIPATION IN ANY PARTICULAR HEALTH CARE SYSTEM OR PLAN.

    http://www.medicalchoiceforaz.com/initiative.html

  49. Well, since it’s not covered by any particular grant of power in the enumeration of Article I, Section 8, it’s pretty hard to make a case that it’s constitutional. Of course by the construction of Gibbon vs. Ogden, damn near EVERYTHING is “constitutional” under the Commerce Clause. But that reading is totally ahistorical. In ordinary usage in the 1780s, “commerce among the several states” referred only to the actual transfer of goods across state borders. Not to agricultural or industrial production inside single state, or purchase or consumption inside a single state.

    In a government of enumerated and delegated powers, it’s not enough not to find an express prohibition of something. You’ve got the burden of proof to show that the power was granted.

  50. My story: work at Haggen. Insurance company takes money out of check without telling me or asking me if i wanted the insurance. never signed anything saying i wanted insurance or authorizing them to take out money. i don’t want to throw away $5 a week- covered on parent’s plan. They won’t let me not pay the insurance. Have to quit job. How is this liberty and justice for all??!!!?

  51. Nice to meet you.
    I had a look at blog.
    Please link to this site.
    http://www.geocities.jp/bom_2_08/

Please to post comments

Comments are closed.