Can Congress force me to buy health insurance?

posted at 10:00 am on August 22, 2009 by Ed Morrissey

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.


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I was talking about this whole health insurance mess with my sister, a bleading heart liberal, who is also a doctor. She thinks the current plans in Congress will cause a brain drain from the system because people like her will just retire. She knows the system is broken beyond repair but she thinks the current proposals don’t address anything because tort reform is not on the table. As we talked out various ideas, I mentioned that I thought I saw that Walmart is considering opening primary health clinics in their stores to do routine kind of stuff. That led us to come up with these ideas, and if a bleeding heart liberal and a constitutionalist conservative like me can figure it out, why can’t those idiots in Washington?

Here is our plan:

1) Tort reform is a must. The Texas state laws are a good start, but there needs to be serious limits on malpractice awards and we need to go to a loser pays systems so fivolous stuff doesn’t get filed.

2) Allow someone like me, who pays $468 per month for my individual policy to qualify it for the HSA treatment. Just because I have an HMO kind of policy, why can’t I get the pre-tax dollar treatment with my premiums and co-pays? Not at all fair. Let everyone in America have a $5K to $8K HSA each year.

3) for the truly needy, why can’t we have an income based system for the routine health care needs like we do food stamps? If WalMart does these clinics, we could issue the plastic cards like the states currently do for food stamps, and the lower income people can use these for their first level health care needs.

4) The really poor people here are already covered with medicaid. I don’t have the answers in how to fix that system which doesn’t really reimburse the providers for even the cost to delivery the care.

5) We have to have a way to send home the illegal aliens that are on food stamps and such. We can’t afford them anymore. That takes care of one third to one half of the uninsured issues.

So far, these are our ideas. They seem better than what Congress is trying to do and they still keep this system in the private industry. Food stamps haen’t put grocery stores out of business. I don’t like welfare, but I do understand that some people need a helping hand.

Just some thoughts from a bleeding heart liberal (my doctor sister) and a constituntionalist conservative who is also a pragmatist.

karenhasfreedom on August 22, 2009 at 8:17 PM

As Justice Thomas said in his dissent in Raich, there simply is no longer any meaningful restriction on what Congress can justify getting involved in through the Commerce Clause.

This makes no sense whatsoever:

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.

So, an activity is “quintessentially economic”… because Congress says it is, by designating it so via statute? Couldn’t they just declare health insurance/whatever to be “quintessentially economic” the same way?

Thomas was right. If the court could find that a man growing weed on his own property for his own consumption is “quintessentially economic,” they’ll find a way to justify anything congress does on those grounds.

Thanks again, drug war!

CTD on August 22, 2009 at 8:23 PM

No, but then again they don’t have the constitutional authority do do a great number of the things they ARE doing now.

jorb on August 22, 2009 at 8:45 PM

So spin this out…
Let’s say that they pass ObamaCare. A Constitutional challenge is brought, and the Court rules it is un-Constitutional. Then what?

Can just the mandate be unconstitutional? Does the law stand or fall as one? Could Congress “fix” the bill by merely taxing everyone and providing “free” ObamaCare to all? How about taxing everyone and then “giving” you money back on your taxes so you can buy the coverage you already have? It seems like the could get around this easily.

4of8 on August 22, 2009 at 8:58 PM

This is a good argument.

How can we have equal protection under the law if congress exempts themselves from Obamacare?

Sounds like we have the nobility comming back.

The Rock on August 22, 2009 at 9:13 PM

Remember, just because the Congress has no power to do something does not matter unless someone with deep pockets takes the mess to court and the Judges have bothered to read the Constitution…maybe a 25% chance today

JIMV on August 22, 2009 at 9:37 PM

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?

Good point, but here’s the realistic alternative.
1. My neighbor decides to buy a new pool instead of paying a monthly health insurance premium.
2. Neighbor has a massive heart attack and is treated at the local emergency room.
3. Neighbor cannot pay $100k in hospital and cardiologist bills and files bankrupcy.
4. I have to pay for my neighbors medical care as the hosptial has to raise its rates to cover the loss of the unpaid treatment.

Take your pick. I don’t really like either option but as long as I’m going to be paying for health insurance, I don’t want to pay for every idiot out there who decides that he’s never going to get sick or die.

foreverright on August 22, 2009 at 9:45 PM

as long as I’m going to be paying for health insurance, I don’t want to pay for every idiot out there who decides that he’s never going to get sick or die.

foreverright on August 22, 2009 at 9:45 PM

What about the ones that are on oxygen or have had heart attacks yet continue to smoke?

I don’t want to pay for ANY of them.

HAnthonyWayne on August 22, 2009 at 11:13 PM

Good point, but here’s the realistic alternative.
1. My neighbor decides to buy a new pool instead of paying a monthly health insurance premium.
2. Neighbor has a massive heart attack and is treated at the local emergency room.
3. Neighbor cannot pay $100k in hospital and cardiologist bills and files bankrupcy.
4. I have to pay for my neighbors medical care as the hosptial has to raise its rates to cover the loss of the unpaid treatment.

Take your pick. I don’t really like either option but as long as I’m going to be paying for health insurance, I don’t want to pay for every idiot out there who decides that he’s never going to get sick or die.

foreverright on August 22, 2009 at 9:45 PM

This is exactly right, foreverright (good name for you). There is no perfectly constitutional solution. In a very real sense, we already have “universal health care” in the U.S., but many are not paying their share of the cost for the services they receive. No one is denied care even if they can’t pay for it. We have to face that reality and deal with it. We are already forced to pay for these people in increased health care costs, insurance premiums etc… In the end, I’d prefer they be forced to get coverage rather than forcing me to pay for those who took the risk and remained uncovered. People can satisfy the mandate simply by purchasing catastrophic coverage through a high-deductible health plan or a Health Savings Account (HSA). Covering more people will ultimately reduce costs to taxpayers (and I’m talking private insurance, not government-run, single-payer system).

PollyTix101 on August 22, 2009 at 11:53 PM

There is no perfectly constitutional solution.
PollyTix101 on August 22, 2009 at 11:53 PM

Of course. The government regulates the holy living Hell out of the health care system, and funds half of it. Turns out that completely screws it up. So, of course, the only possible solution to the problem is to have the government fully control EVERYTHING.

As the old saying goes: a foolish consistency is the hobgoblin of liberal minds. You get stuck in a hole, well, the only thing you can do is keep right on digging until the problem’s solved.

logis on August 23, 2009 at 12:47 AM

Nice post. And even if they could make you do it, these mandates explode costs and cause rationing. Massachusetts did individual and employer coverage mandates beginning in 2006 and it’s been a fiscal disaster.

This is Gonna Hurt: The Pain of Mandatory Health Insurance

SBABG on August 23, 2009 at 1:36 AM

4of8 on August 22, 2009 at 8:58 PM

Whether you are for nationalized healthcare or against it, Congress has no power, according to Article 1, Section 8, of the U.S. Constitution, to enact legislation on nationalized healthcare.
Article 1, Section 8, clauses 1 through 18, defines the powers that Congress has to enact any legislation and defines the subjects that Congress may enact legislation for. Congress may enact legislation pertaining to postal roads and the military. It may declare war and conduct tribunals and trials lower than the Supreme Court, etc. Healthcare is not mentioned anywhere in Article 1, Section 8.
Each of these powers culminates in Article 1, Section 8, clause 18, granting Congress legislative power over the previous subjects, including those in the 17 previous clauses in Article 1, Section 8. These powers are also finite as defined in the 10th Amendment.
Healthcare is absolutely a 10th Amendment, states rights issue. National healthcare legislation thus also violates the 10th Amendment.
Federal law prohibits residents of any state from buying health insurance from any insurance company outside of their state of residence. This ensures that health insurance falls inside the bounds of “intrastate commerce” and completely outside the several commerce clauses contained in the Constitution. Again, national healthcare legislation is unconstitutional.
Let us look to the words of James Madison, author of our Constitution and Bill of Rights: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.”
Madison clearly believed that the powers of Congress were limited, confirmed in our Constitution. Clearly, nationalized healthcare is, many times over, unconstitutional, illegal and beyond the powers of Congress to enact.

nelsonknows on August 23, 2009 at 3:14 AM

Where did congress get the right to force private entities (hospitals) to give away goods and services for free?

The sub-prime mortgage mess also comes to mind. Doeas anybody think banks would have handed out large chunks of cash to losers voluntarily?

funky chicken on August 23, 2009 at 9:05 AM

People can satisfy the mandate simply by purchasing catastrophic coverage through a high-deductible health plan or a Health Savings Account (HSA). Covering more people will ultimately reduce costs to taxpayers (and I’m talking private insurance, not government-run, single-payer system).

PollyTix101 on August 22, 2009 at 11:53 PM

But H.R. 3200 repeals the law that authorizes HSAs and also repeals Medicare Advantage. What they want to end up with is not “insurance” anymore at all, but “welfare.” It is a straight up redistribution scheme that will force most of us working people to actually pay MORE for our health insurance, until we cry “uncle” and opt for the government plan that will offer below-market premiums.

This is how the government killed the subprime mortgage market, by allowing Fannie Mae and Freddie Mac to start buying and securitizing subprime loans at below-market prices. Private lenders had to lower the interest rates to compete, and when the defaults started, they didn’t have enough money to reserve for the losses. Almost nobody seems to notice the exact same thing about to happen in health insurance if the government is allowed to “compete” and offer below-market subsidized prices.

rockmom on August 23, 2009 at 11:59 AM

From Federalist 41:

“Some…have grounded a very fierce attack against [adopting] the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.”

Obviously, they would have to stoop a little less now-a-days…The Anti-Federalists–not wrong, just too early…

Horatius on August 23, 2009 at 4:18 PM

She knows the system is broken beyond repair

Stop. First that is a bad assertion. The system is NOT broken beyond repair. That’s feeding the stupidity that is obamas underlying reasoning for forcing this socialist crap on us in the first place. The system does need REFORM, but you don’t REFORM a system that is broken, you replace it. This system is the best in the world, but it needs tweaking certainly.

but she thinks the current proposals don’t address anything because tort reform is not on the table.

This is only one small aspect of what needs to be fixed. Well, maybe not so small because the lawyers are going to squeal like pigs ala Deliverance style, and it needs doing, but it’s not the only factor. The fact that your sister points this out singly just shows that she’s “trending” rather thinking for herself. That’s what got us into this damned mess with a socialist like obama in the first place.

Here is our plan:

1) Tort reform is a must. The Texas state laws are a good start, but there needs to be serious limits on malpractice awards and we need to go to a loser pays systems so fivolous stuff doesn’t get filed.

Only one shade of the scale here. Other things like disallowing illegals to get health care here, allowing insurance companies to sell policies out of state, and disallowing or limiting the pre-existing condition business are more of them. Again, tort reform is needed but it’s not the only issue for which she is calling the system broken beyond repair, which it is not.

3) for the truly needy, why can’t we have an income based system for the routine health care needs like we do food stamps? If WalMart does these clinics, we could issue the plastic cards like the states currently do for food stamps, and the lower income people can use these for their first level health care needs.

Medicaid and medicare. Fix them and make one or both available to low income. That becomes the ‘public plan’, because in essence they already are. We don’t need to create one more, especially since the ulterior motive behind a third is to erase the competition so the gov’t can claim all the business, then screw it up and steal our freedoms to boot.

karenhasfreedom on August 22, 2009 at 8:17 PM

Spiritk9 on August 23, 2009 at 5:39 PM

Take your pick. I don’t really like either option but as long as I’m going to be paying for health insurance, I don’t want to pay for every idiot out there who decides that he’s never going to get sick or die.

foreverright on August 22, 2009 at 9:45 PM

In the end, I’d prefer they be forced to get coverage rather than forcing me to pay for those who took the risk and remained uncovered.
PollyTix101 on August 22, 2009 at 11:53 PM

And if I bought Cubs season tickets, I guess there’d be a sound personal motive to ban the New York Yankees. So what?

You bought something because you figured it would save you a buck. Now you suddenly see a downside and it’s everybody else’s fault but yours, and everybody else’s clear duty to bail you out?

Chris_Balsz on August 23, 2009 at 7:34 PM

I could take the attitude, that the only reason I have a $800 bill for 2 hours in the emergency room, is that your insurance companies will pay without complaint. Clearly, you victimized me. So what shall the federal government do to punish you for your reckless behavior?

Is that fair? Is that even sane?

Chris_Balsz on August 23, 2009 at 7:38 PM

Some above discussion regarding lawsuits has me curious – who would be suing whom? Remember sovereign immunity – you can’t sue the govt. unless they agree to it. Somehow I don’t think the gov. will accept lawsuits over this.

So much unconstitutional stuff has been done lately that I don’t look to the Constitution to save us.

They will try mightily to pass ~something~. I’m wondering how to resist. The present bill gives them access to my bank account: I’ll close it. I can tell my doctor that I don’t want her releasing my records to anyone without my specific permission. Don’t know if that will stick… I have a little business and a little part-time job – the little business can go Galt, and possibly the job can pay me cash, although they would still pay FICA and all that. If I had a regular job, I’d up my deductions to the max.

I have insurance I like, no complaints there. Read some posts above about insurance and medical problems. Most of us could post some tragic story, I sure could. Life is not fair, most of us figure that out in kindergarten. You play the hand you’re dealt, very few of us get a perfect hand.

jodetoad on August 23, 2009 at 7:44 PM

Most of us could post some tragic story, I sure could. Life is not fair, most of us figure that out in kindergarten. You play the hand you’re dealt, very few of us get a perfect hand.

jodetoad on August 23, 2009 at 7:44 PM

Ding! Ding! Ding! This is exactly right. The problem is that the children of this country are being indoctrinated in public school everyday that big government can take away the unfair part of life. Unless those schools are taken back from the libs/NEA this country is doomed. They have the kids 9-10 months for 6-8 hrs a day!

jwp1964 on August 23, 2009 at 9:01 PM

It has started already, no not the death panels, the onion panels
Officials Weigh Circumcision to Fight H.I.V. Risk
By RONI CARYN RABIN
Published: August 24, 2009
Officials are considering promoting routine circumcision for boys born in the U.S. and whether it should be offered to adult men with risky sexual practices.

From NYT …I’m loving it

macncheez on August 23, 2009 at 9:45 PM

What are you talking about this article had to do with treaties and the states.

Please make sure you add the WHOLE article 3 section 2!

xler8bmw on August 22, 2009 at 11:01 AM

I did read all of Article III before commenting. Note what comes before the sentence I highlighted. It’s obvious that everything in the first paragraph of section III is what is covered by the highlighted statement (that Congress has the power to limit appellate jurisdiction of the Supreme Court). The sentence, which is attached at the end of paragraph 2, obviously pertains to the first paragraph, because the text of paragraph 2 indicates that when a controversy rooted in paragraph 2 appears, the Supreme Court has original, not appelate, jurisdiction. It makes no sense for the Supreme Court to have both original and appellate jurisdiction over a particular type of case — they are mutually exclusive.

Please reread the entirety of Article III again, and, after considering the distinction between appellate and original jurisdiction, tell me exactly how I am misreading Article III.

unclesmrgol on August 24, 2009 at 1:13 AM

And here we go; NO COST OF LIVING INCREASE FOR SOCIAL SECURITY NEXT YEAR!
Oh, thank you, thank you Master Obama. Where do I get in line to wash your feet?

Cybergeezer on August 24, 2009 at 8:40 AM

As the words “health insurance” aren’t to be found in the founding document, you are correct. Also, there is nothing in the Constitution authorizing the founding of the U.S. Air Force, the regulation of the communications industry, funding for space exploration or how much orange juice orange juice has to have in it before you can call it “orange juice.”

Time for a new argument, dimwits?

bschmalfeldt on August 24, 2009 at 9:32 AM

According to the “new” reading of the constitution, if anything you buy or make, at any point in your life, ever crosses a single state boundary, then according to the “commerce clause”, the govt can regulate any and all aspects of your life.

I wish that was sarcasm, but it’s modern reality.

MarkTheGreat on August 24, 2009 at 9:41 AM

Under current Constitutional precedent, the purchase of anything or production of anything (whether it’s for personal use or not) is subject to government regulation.

But as broad as that power is, I don’t think it will give the power to force insurance companies to serve all customers. But they could make it a Civil Rights case – by legislating against discrimination based on the health status of an individual. It’d be an easy sell to the public, too. “Don’t sick people have a right to health care too?”

hawksruleva on August 24, 2009 at 10:15 AM

As the words “health insurance” aren’t to be found in the founding document, you are correct. Also, there is nothing in the Constitution authorizing the founding of the U.S. Air Force, the regulation of the communications industry, funding for space exploration or how much orange juice orange juice has to have in it before you can call it “orange juice.”

Time for a new argument, dimwits?

bschmalfeldt on August 24, 2009 at 9:32 AM

Thanks for the irrelevant list of all optional spending Congress has decided the government can pay for.

Back to the topic, where does the Constitution say Congress can require a citizen to buy anything?

Chris_Balsz on August 24, 2009 at 10:51 AM

PollyTix101 on August 22, 2009 at 11:53 PM
—-
This is simple.

Show up at an E.R. for treatment.

If you cannot demonstrate ability to pay, then at some point during treatment you are fingerprinted, DNA-sampled, photographed (both head-on and profile, mug shot style) and entered into a national database of non-payers.

If this is a government mandate, then the database gets cross-checked when you interact with “the government”.

Want to get a drivers license renewed or a license plate for your car? You need to clear the non-payment first. File a tax return and get a refund? It gets re-directed to the hospital to cover the non-payment. Marriage license? Umm, not until you make arrangements to pay the hospital.

Note – I’m NOT saying “pay it all at once”, I’m saying “get on a payment plan”. This is standard finance stuff.

This doesn’t have to be done as a government mandate either, it could just be a “reform”. Healthcare industry could put this together pretty damn quick, if they wanted to (and if it weren’t illegal – not sure about that…)

Just obtain and include these details for *everybody’s* charts, call it a way to make sure that the Joe who is on the chart is the same Joe who is under the kinfe, then compare notes between themselves, and invoke *EXISTING* debt collections agencies to get their money back.

Everybody gets coverage, those who are using the E.R. to avoid paying bills end up getting a lot of problems, unless they’re living the cash-only lifestyle… and if they *are* living cash-only, then the debt collectors can still take them down, especially if they’re not paying taxes….

Mew

acat on August 24, 2009 at 3:30 PM

Full Employment for Lawyers Bill HR3200

Reality Check on August 25, 2009 at 9:55 AM

There’s nothing in the Constitution that gives the feds control over education but we sure do have an office that spends millions controlling education.

Separation of church and state are words that are not in the Constitution but some quote the opposite. Easily clarified.

See for yourself and do yourself a favor and read The Constitution.

mixplix on August 25, 2009 at 11:10 AM

Here’s a good example of Congressional administration:
The Heritage Foundation; “The public national debt–$5.8 trillion as of 2008–is projected to double by 2012 and nearly triple by 2019. Thus, America would accumulate more government debt under President Obama than under every President in American history from George Washington to George W. Bush combined.”

Cybergeezer on August 26, 2009 at 11:25 AM

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