Is Making People Buy Health Insurance Constitutional? : The Two-Way Is making people buy health insurance constitutional? Conservatives argue it isn't and that the health-care overhaul proposal being pushed through the Senate this week is fundamentally flawed because it contains what they say is an unlawful mandat...
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Is Making People Buy Health Insurance Constitutional?

Is it constitutional for the federal government to force people to buy health insurance from private companies?

Conservatives argue it isn't and that the health-care overhaul proposal being pushed through the Senate this week is fundamentally flawed because it contains a mandate that everyone have health insurance coverage.

The Senate minority intends to force a procedural vote Wednesday on the constitutionality question which they are expected to lose.

But Democrats are certain of the constitutionality of the legislation.

As The Wall Street Journal reports:

Republicans are forcing the Senate to vote Wednesday on whether the Democrat-backed bill is unconstitutional. Sen. John Ensign (R., Nev.) raised a point of order Tuesday against the bill, arguing that the Constitution doesn't give Congress latitude to force Americans to buy health coverage, as both the House and Senate bills do.

"What's next?" Mr. Ensign said. "Will we consider legislation in the future requiring every American to buy a car? Will we consider legislation in the future requiring every American to buy a house?"

Mr. Ensign isn't expected to succeed. But the effort dramatizes a criticism raised by Republicans and conservative activists. Under the Senate and House bills, Americans who don't receive health coverage through their employers must buy insurance if they can afford it.

The "individual mandate" is part of broader legislation designed to expand health-insurance coverage to tens of millions of Americans. The bill offers tax subsidies to purchase insurance and widens eligibility for Medicaid, the federal-state program that provides health insurance to the poor.

Conservative critics contend that the provision violates the Constitution's "takings clause," which says "private property [cannot] be taken for public use, without just compensation."

Democrats counter that the mandate is necessary to make the planned overhaul of the health-care system work, and ensure that as many people as possible participate in the system. Under the Senate bill, individuals who don't purchase coverage would face a financial penalty up to $750.

Democrats say the courts have given Congress wide authority to impose rules under its powers to regulate interstate commerce.

"We feel very sound in our position," Mr. Reid said.

Reid, of course, has to sound confident about the constitutionality of the individual mandate since he likely wouldn't get 60 votes to do something he openly thought was unconstitutional.

But it's not like he's whistling in the dark. While the notion that the government can force people to buy private insurance will offend the sensibilities of many Americans, Reid can find any number of legal experts who argue that, so long as Congress frames the language of the law properly, such a mandate could pass a Supreme Court challenge.

The non-partisan Congressional Research Service prepared a report that suggests that an individual mandate could pass Supreme Court review under the power the Constitution's Article1 grants Congress to tax and spend. An excerpt:

Certain health insurance mandate proposals could rely on Congress's spending and taxing authority. For example, if Congress chose to require individuals to have health insurance by levying a tax, then using the revenue for funding health benefits, this could be viewed as an appropriate use of Congress's taxing and spending power. Or, if Congress were to require individuals to purchase health insurance, and then enforce this requirement by conditioning receipt of a tax benefit (e.g., a tax credit) on compliance, this also could be seen as a legitimate exercise of Congress's taxing authority. Similarly, if Congress were to enact a proposal under which individuals who did not purchase health insurance were subject to a tax penalty (e.g., a loss of a tax deduction), this also could be seen as valid under this clause of the Constitution.

In addition, Congress's Spending Clause authority could be invoked if a proposal to require individuals to purchase health insurance involves state participation. Congress has frequently promoted its policy goals by conditioning the receipt of federal funds on state compliance with certain requirements. Accordingly, if Congress were to condition payment of certain funds to states based on whether that state requires its residents to have health insurance, this could also be seen as acceptable under the Spending Clause. While the Court has recognized that Congress cannot force states to take certain courses of action because of state sovereignty protected under the Tenth Amendment, the conditioning of funds can be a legitimate inducement to get states to follow the will of Congress. Thus, if Congress were to grant federal funds to states that enacted laws which required individuals to purchase health insurance, this type of law would likely be considered a legitimate use of Congress's spending clause authority.

More iffy would be Congress's use of its power over interstate commerce, the Constitution's Commerce Clause, as justification for mandating that individuals have insurance.

Another excerpt from the CRS report:

Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance. Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.

Of course, the Supreme Court has a narrow but nonetheless real conservative bias because of swing justice Anthony Kennedy's tendency to side with the four ideological conservatives. So it seems safe to say that the current court could find its way clear towards seeing the situation more through the eyes of, say, conservative scholars than Senate Majority Leader Reid's.

Indeed, a piece found on the conservative Heritage Foundation's website makes that very point:

Mandating that all private citizens enter into a contract with a private company to purchase a good or service, or be punished by a fine labeled a "tax," is unprecedented in American history. For this reason, there are no Supreme Court decisions authorizing this exercise of federal power. There are strong grounds to predict that the current Court will not devise any new doctrines by which to uphold an individual health insurance mandate. First and foremost, as already mentioned, to uphold this exercise of power, the Supreme Court would have to affirm for the first time in its history that Congress has a general or plenary police power--a position the Court has repeatedly refused to take.

We return to the initial question: is the mandate that individuals have health insurance legal under the U.S. Constitution? The answer appears to be that the Supreme Court will ultimately decide the matter.

The Two-Way

The Two-Way

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