Monday, November 16, 2009

Mandates and the Constitution...

Among the several comments I have received about health care reform is the suggestion mandates to buy health insurance are unconstitutional.  I hadn't hear any debate about this, but I have been pretty well out of the loop (no, still not done).

My initial reaction is why health insurance would be any more unconstitutional than auto insurance, but luckily better minds than mine have pondered this question.
Before we get started down this road, yes, the individual mandate is constitutional. For a roundup of the argument, see this Tim Noah piece. For a longer, more technical explanation, see this post by law professor Erik Hall.
The summary is that you can look at the individual mandate as a tax, which is constitutional, or as a regulation forcing private actors to engage in a certain transaction, much like the minimum wage, which is also constitutional. I've also heard scholars mention auto insurance, which is an obvious analogue, and the Americans With Disabilities Act, which proved that the government can order businesses to install ramps, despite the fact that the constitution doesn't explicitly give the federal government jurisdiction over entryways. [More]

And of course, the mind wanders to the ethanol mandate...


buffalobill said...

Nope, that(mandated health insurance) would not be unconstitutional. There are so many other instances that are similar that are 'constitutional'. On the other hand, if it should actually be unconstitutional (ie in reality). The question will never come before the Supreme Court. Who is going to sue so the question can be asked? The insurance companies won't, nor will the GOP, likewise the Dems. I sure can't afford to sue, so hardly anyone is left! Perhaps AARP? Or ACLU? Not too it must be 'constitutional'.

Brandon said...

If this mandate to buy insurance is passed and determined to be constitutional, then of course other 'mandates' will be needed.

Like a mandate forbidding you (by imposing high taxes) from eating unhealthy food, high fructose corn syrup, or excess drink.

Mandates to maintain less body weight or lower blood pressure, or not have babies late in life.

Mandates forbidding certain hobbies like hang gliding, or kayaking, or the rodeo.

All of these enjoyable things could be considered too high of risk, and therefore adds costs to the whole citizenry. Tax it to stop it!

I'm still not understanding the argument: "well the government has always done stupid things, and plays fast and loose with the constitution, so we might as well keep letting them do it."

From Virginia said...

the mandate for purchase of auto insurance is from state governments, consistent with the 10th amendment. Having said that, Congress has stretched the Commerce Clause to claim federal jurisdiction over many things not contemplated when the 10th amendment was drafted.

John Phipps said...


I see your point. But even state laws can be challenged as unconstitutional. Simply originating in state legislatures does not exempt them from federal judicial scrutiny.

Of course most of these deviations are caught by state supreme court challenges, as state constitutions cannot supersede the US Constitution.


Your point as well is well taken. this is why I oppose even seemingly benign use of mandates. as well as being bad economics they make the next mandate easier.

Anonymous said...

Auto insurance is required IF you drive a auto (not required). Health insurance is required of everyone (no choice).
Kind of like participation in the farm program isn't required to farm but if it were it might be unconstitutional.