One of the more troubling components of the ObamaCare bill wending its way through the House is the inclusion of individual mandates to carry health insurance. What gives Congress the power to dictate that choice to American citizens? A single document enumerates Congressional power, and former Department of Justice attorneys David Rivkin and Lee Casey have some trouble finding that power in it. They argue, with appropriate citations of precedent, that HR3200 and any other bill that attempts to impose mandates will violate the Constitution:
Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
Most states now require drivers to have auto insurance before issuing drivers licenses, car registrations, or both. However, that doesn’t apply here for three reasons. First, that power rests with the individual states, as they are the licensing authorities and not the federal government. Second, driving is not a right but a privilege, which gives access to state-owned roads in exchange for a demonstration of competence and appropriate safety and insurance preparation, so the state can and does set conditions on that privilege (too many, but that’s an argument for another day). Third, because the insurance is conditioned on that privilege, it only affects a portion of the populace. The states could not demand universal auto insurance on every man, woman, and child in their state.
But how about using the tax code to enforce the mandate? Congress has the power to tax, as we know all too well, and they can create some severe penalties for failure to comply. In fact, HR3200 does just that now. However, as Rivkin and Casey explain, any tax that seeks to impose policy that goes beyond the limits of the Commerce Clause is also unconstitutional:
Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a “tax” to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court’s interpretation of the commerce power’s breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.
In other words, individual mandates are unconstitutional, regardless of whether they’re explicit or buried in tax policy.
If that’s true, what happens to universal coverage? It fails, because not everyone wants to buy health insurance now, and that’s likely to be more rather than less true after ObamaCare passes. As we saw in Maine, when the government offers a public plan and forces community pricing and unrestricted access on private insurers, the people most likely to enroll will be the infirm, whose costs will unbalance the risk pools and drive up premiums across the board. That will make insurance even more expensive, which will discourage rather than encourage enrollments, and do nothing at all to lower public costs of healthcare — the entire stated reason for ObamaCare, other than universal coverage.
The only way to get mandatory universal coverage is conversion to a single-payer system, which Congress also doesn’t have the power to do without amending the Constitution. Otherwise, free will in a free system dictates that people will make choices with which many disagree, and that includes the choice not to buy health insurance.