The Constitution: Are federal health insurance mandates constitutional?
(One of a series)
There have been some on-line discussions recently of whether a federal mandate that individuals obtain health insurance would violate the U.S. Constitution. This issue is distinct from the issue of whether other sorts of government health programs – such as single-payer – would be constitutional.
It is also distinct from whether states can impose insurance mandates. They can: States have general governmental powers. But the federal government has only the powers enumerated (listed) by the Constitution.
Let us be clear at the outset that federal involvement in health care (except in a few isolated instances, such as federal employee benefits) certainly violates the Constitution as that document was originally understood. I have now spent nearly twenty-years of my life researching and publishing scholarly studies on the Founding-Era record, and I have found no significant evidence that those who wrote and ratified the Constitution thought federal power would extend to health care. Quite the contrary: When the Constitution was being promoted to the public, one of the big selling points was that regulation of all such matters would remain exclusively with the states.
So for those who subscribe to the widely-held view that the Constitution, like any other legal document, means today what it meant when adopted (aside from amendments), there is no real question: Federal health care mandates are unconstitutional.
The more-discussed point, however, is whether such mandates are within the federal government’s authority as that authority is applied by the Supreme Court today. More specifically, does the mandate qualify under Congress’s Commerce Power as a law “necessary and proper for carrying into Execution” the power “To regulate Commerce . . . among the several States. . . ?”
Recent Supreme Court cases are split between (1) those that hold that a law qualifies if it regulates an activity that “substantially affects” interstate commerce and (2) those that hold that a law qualifies if Congress could rationally believe that the activity “substantially affects” interstate commerce. Because of changes in personnel on the Court, it is not clear which standard the Court would apply. Of course, everyone agrees that health care activity as a whole “substantially affects” interstate commerce.
Nevertheless, federal health insurance mandates face at least two difficulties meeting either of the modern Court’s standards for the federal Commerce Power. The first is that just doing nothing — not buying heath insurance — is not an “activity.”
In a famous case relied on by those who think mandates are constitutional, the Court upheld application of maximum acreage legislation to a farmer who kept the wheat sold on his “excess” acreage for his own use. But in that instance, the farmer was engaged in a commercial business, and sold much of his product on the open market. In another case similarly relied on, the Court extended the Commerce Power to people who grew, exchanged, and used medical marijuana. But, again, in that case those regulated were actually engaged in activities that could be regulated.
But most of those commanded by federal insurance mandates are doing nothing but breathing.
A second potential constitutional problem is that if the Court were to uphold a regulation on people doing nothing to regulate, then the justices really would have to confront the question of where there is anything outside the federal commerce power. For years, critics of the modern Supreme Court have attacked its expanded commerce power jurisprudence with the reductio ad absurdum argument that the court’s jurisprudence would permit Congress to regulate people just for breathing.
Now the absurdum has arrived. Certainly the Supreme Court is sensitive enough to legal consequences to hesitate before taking that final step.
The Supreme Court also is sensitive to political consequences. Mandates are likely to prove quite unpopular with an outspoken and influential part of the American population. Although most Supreme Court justices probably do not consciously consider the popularity of a challenged law, history suggests that such factors have a subconscious effect.
At any rate, these are serious questions, worthy of serious consideration by Members of Congress. Members of Congress should not merely blow them off as irrelevant, as Speaker Pelosi has infamously done. After all, our legislators take an oath to uphold the Constitution, just as Supreme Court justices do.
I agree with you Professor Natelson, that the government has badly abused it’s constitutional authority, with no end in sight.
The main problem, as I see it, is that the Judicial Branch, who is supposed to be the check & balance, has turned political.
What is the solution?
I suppose the States could file a Federal Lawsuit, but what court would hear it?
No constitutional scholar I, but if the government wants to get into the health insurance business via single payer, fine by me. It would be blessed relief from the health insurance companies.
But for the government to mandate that I buy a product from a private health insurance company without providing a public option to compete with that company – that strikes me as a perversion of the law and abuse of power by private corporate power.
And the only reason that private power can get away with it is because of the way we finance political campaigns. Seems we need to alter our governing document to fix this problem.
Eric,
Your misunderstanding about the Constitution is precisely why it is now worthless.
All branches of the government Executive, Legislative and Judicial have the responsibility to check and balances.
As soon as the government decided only SCOTUS was the ‘brake’ on government abuse – and given SCOTUS is unelected, very quickly you can see how the check/balance system collapses.
The elected rep’s simply point to the appointed judges, and say to the voter “It’s not our job – but theirs – to protect you from us!”
But since they are appointed, SCOTUS says “We get our living from those guys in the BIG HOUSE, not the voter. We therefore must protect the BIG HOUSE against the voter!”
Mark,
Indeed, for you, a choice of one is better than as many choices as the market can bear.
It appears too many choices for you is confusing.
Black Flag, for someone who wants to position himself to lecture others about constitutional issues, your premise (“As soon as the government decided only SCOTUS was the ‘brake’ on government abuse…” [Emphasis mine]) demonstrates a significant lack of sophistication in your analysis.
Anon,
Please pretend that you know what you are talking about by actually explaining your complaint instead of merely complaining.
As I did in mine, I described the change of the operation of the check and balances.
You have described empty air.
Cheers!
Black Flag – It’s not that I am bedazzled by too many choices – it is the Coke/Pepsi nature of the choices. Anthem is not going to offer a better deal than Kaiser than CIGNA. They each have a market share and while they will compete on aesthetics, and offer different emotional appeals via advertising, they do not price-compete.
And it doesn’t matter, as I have a preexisting condition, so none of them will offer anything.
Black Flag – honestly, you’re a nice guy and a smart dude, but you don’t live on this planet.
Mark,
And, sir, you are a glowing example of what I speak.
You do not believe I live on this planet, even if by direct observation – I must.
And that is the majority condition of humanity – they would rather ignore reality and their own observation, and instead maintain their self-imposed myths, irrationalities and fantasies.
Many years ago, I was in a pub with a friend and it was being entertained by a magician.
Near the end of his routine, he handed out a sheet with 10 MENSA questions, and said that if anyone got all 10 right, he’d buy them a jub of beer! I like beer!
As a MENSA member myself, the questions were not that hard – and of course I got all 10 right …. including the last question.
The last question was a simple logic problem of family relationships “Who is your brother’s sister’ son” …that type.
It boiled down to “Who is your grandmother’s son?”
The answer is obvious: your father….
…and your uncle.
Of course, he saw the duality answer I gave and chuckled – “You’re wrong!!!” – to which, of course, I went through the logic with him, right up to the final question: and asked, “So what do you call your father’s brother, who shares the same mother – your grandmother”
His face contorted, changed color, his eyes buggy and glazed over…. and then he heard others in the pub whisper “Hey, that guy is right – it is uncle and father!”
The magician had two immutable beliefs in contradiction – MENSA is never wrong – the logic is right.
He snapped out and yelled “You’re tricking me!”, to which is a rare moment of wit, I responded “But I thought you were the magician!”
He stomped out, and I didn’t get my beer.
But it highlights precisely what I see in you, good sir, and in others, and the challenge you have.
You hold two, contradictory, but immutable beliefs.
You spend your life trying to rationalize one against the other – and always fail.
But, undaunted, you will never throw away the irrational belief, no matter what – and you would rather and easily throw away the reasoned one – simply because the irrational one is easier; it doesn’t need rationality and anything goes…..
Cheers!
Mark T:
Your statement that “……..without providing a public option to compete with that company…” is a perversion of economics.
Govt controlled entities do not compete with private sector entities. They simply monopolize and destroy.
This whold concept of govt competition is a ruse to play on the unthinking, who still believe in some type of capitalism, and thus don’t realize it is nothing but a word game.
Black Flag – bravo! bravo! I think. You didn’t exactly address my concern. You said that I feared choices, I said that Coke/Pepsi was not a choice, and that anyway, the “market” refused me any kind of choice.
And then you went all Foster Brooks on me. Report back from your planet.
JAC – It’s a perversion of “free market” economics, which are largely inappropriate and out of step with our real nature and behavior. Government can indeed compete with private insurance companies, and do a better job. The fact that we are not allowed that option is only because, as they learned in Canada, good systems force out bad once. Single payer, tried on a province level, was so successful that Canada soon thereafter booted the private insurers.
You’re wrong.
Mark,
My point was made; you see a Coke/Pepsi world – and your answer is Dr. Pepper and nothing else.
You can’t imagine Coke/Pepsi/Jones/Kentucky Sweet/etc..etc…
Mark T:
“It’s a perversion of “free market” economics, which are largely inappropriate and out of step with our real nature and behavior. ”
Think you could articulate some kind of proof regarding this monumental conclusion?
It is soooooo typical of you right wingers to demand “proof”! It is a reflection on the way you think – you are looking for black/white.
You are surrounded by “evidence” that markets have positive outcomes and “evidence” that they have negative outcomes. There are undelrying behaviors which seem governed by economic impulses that tend to self-regulate over a wide sphere and offer us great benefit, like, for instance, the lowering of the price of computer hardware and software over time due to innovation, economies of scale, and competition.
On the other hand, you have the natural tendency of market players who gain, say, 20% of so of a market to enter into actual and de facto agreements with “competitors” to maintain prices, share markets, block out innovators, bribe government officials, squash and harm workers and the environment and commons.
It’s a gray world, JAC. Deal with it.
It’s also a regulated market in favor of the existing players. No new insurance providers need apply. Isn’t there an anti-trust exemption just for health insurance companies. In small package shipping, Fed Ex, UPS, DHL and some smaller players all compete with the USPS. The privates are gaining market share, while USPS has them on price. Now, you righties don’t think existing health insurance providers can compete with a single-payer health care system. I get that, but I think it doesn’t matter, because if existing companies can’t figure it out, and new entries aren’t prohibited by law, some smart entrepreneur will figure it out and operate profitably. You’re protecting too big to fail – again.
Mark T:
I am not looking for any color.
I am waiting for your explanation of why Free Markets are incompatible with our nature and behavior.
It was your assertion so I thought you might have some basis for making the claim.
Come on, certainly you can explain or defend your conclusion. Can’t you?
And now you have compounded it by claiming that behaviour is somehow driven by economic impulses. So can you explainwhat these “economic impulses” are and where it is they come from?
Ladybug:
Your statement has me confused.
“I get that, but I think it doesn’t matter, because if existing companies can’t figure it out, and new entries aren’t prohibited by law, some smart entrepreneur will figure it out and operate profitably. You’re protecting too big to fail – again.”
Could you explain what it is you are trying to accuse we righties of here?
Something is being lost in translation I fear.
Thanks
JAC