Is it Unconstitutional to Mandate Health Insurance?
Mark A. Hall
Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. See here and here and here. Their reasoning is unconvincing and deeply flawed. Since I’m writing in part for a non-legal audience, I’ll start with some basics and provide a lay explanation. (Go here for a fuller account).
Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.
An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.
Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights - the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”
Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.
If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.
Mark Hall
Professor of Law and Public Health
Wake Forest University School of Law
Spin it anyway you like, the Constitution does not allow the federal government to take away the freedoms of Americans. It was written to prevent that. If you yearn for the failed policies of socialism then move to europe please, maybe then you will be happier with less individual rights than you enjoy now. America did not become the greatest nation ever in history because it was founded in socialist principles.
Why would the author be so ready to give up his freedom and hard earned money to criminal liars like nancy pelosi? It does not make sense unless perhaps the author stands to be enriched at taxpayer expense, like the crininal bankers, unions and enviromentalists are.
Follow the money trail here and you will find criminals looking to steal who have no interest in anyones heathcare.
The free market is the best solution.
I’m actually not sure of where to begin–as I take issue with every single thing you said–from a legal, political, and perhaps even a moral standpoint. But might I suggest that you seemed to have missed the point of the article? The article you commented upon addressed the question, from a Constitutional perspective, of: “Can we do this?” It really did not address “Should we do this.” There’s a big difference between these two things. And though the post also answered the question, “If we were to do this, how could we do so within the law” (i.e., not contrary to the Constitution), this also is a very different thing than “should we do this?” And–although to some extent “all law is ultimately policy” (very smart judges often disagree on “what the law is” –and both sides often have credible justifications for their positions), to characterize constitutional analysis as “spin” is egregious. As for the rest of your comment, it simply lacks logical consistency in more ways than I can begin to address.
Though I must say it was, it was almost pleasant to see the good ol’ “America, Love it or Leave it!” line drummed up again after all these years (as opposed to “America, Love it and fight for the grand idea and promise which it is–and can be!).
Having said all that, I find it surprising that your belief in unfettered capitalism has survived the current economic crisis. The credit default swap/ collateralized mortgage securities debacle– you reference “criminal bankers” and yet you seem to believe if pure profit motive were left untouched by the regulatory hand of the government— that this would be “the best solution.
Hi Michael, thanks for your reply.
In your opinion it is imoral to obey the law? The Constitution was written to preserve individual liberty and prevent consolidation of federal government power into hands of a corrupt few. I must admit you are good with spin, but you cannot spin into reality something that is not there.
Nowhere did I say I was against government regulation. Our government has engaged in criminal activity with regard to regulation, thus our economic situation. Captialism is not at fault here and is the solution, coupled with uncorrupt government. Some recommended reading for you : http://market-ticker.denninger.net/
I’m somewhat dissapointed with you Michael, are you what passes for the leftist and anti-capitalist elite intelligensia nowadays? No wonder Americans are pissed off.
Might I suggest that regulation of markets is antithetical to the term/theory “Free Market?” In direct proportion to the amount of regulation, the market is, by definition, not “free.” As such, what we discuss then is merely extent– not principle. How much regulation, not whether the market is “free” or not.
But again, the article itself deals with the constitutionality of a given course of action, not advocacy per se. I think what’s important to understand here, is the distinctly legal proposition: the Constitution has been interpreted in certain ways over the centuries so that the words of the Great Text have come to have rather distinct legal meanings which must be addressed when one wants to know whether or not a specific course of action will pass muster as constitutional. That is what the Professor was doing. If you don’t mind me saying (or even perhaps if you do) what you seem to be espousing is more akin to the time honored tradition of what is known as Jury Nullification– a grand tradition within the law where despite the letter of the law–juries simply refuse to convict–utilizing their innate sense of right or wrong–for good or ill– instead of a technical understanding of the Law. Again, a fine tradition– the Zenger case here in Colonial times (seditious libel for publishing a newspaper critical of Governor William Cosby of New York) is a classic example and, one might say, one of the roots of greatness here in the States (see first amendment, press). But this is very different from an analysis of the law itself. As this tradition really owes more to Natural Law and the belief that an immoral law is really no law at all (see Antigone, Aquinas, Declaration of Independence, Constitutional Jurisprudence prior to Swift & Erie, John Finnis, or spend 15 minutes with the Great Professor Michael Ambrosio).
An example of a legal argument would be if you were to point out that substantive economic due process–although disfavored as of late– is responsible for many of the private rights we find most dear– that cases such as Pierce v. Society of Sisters (right to engage in economic activity/ right to raise child according to one’s own beliefs/attend private-Catholic school/operate same); Meyers v. Nebraska (right to engage in economic activity/teach German/raise children in manner in accord with one’s own beliefs/desires (non-religious); Yoder (Amish exemption from mandatory school at certain age in accord with religious belief) and Sherbert– live on in the Privacy line of cases… and that such might be extended/utilized (depends on your point of view) to create either a religious exemption (as Prof. Hall mentions, in addition to his very important mention of the potential statutory conflict with RFRA (passed as a response to Smith)), or to craft an argument which posited the imposition of the moral hazard problem (wrought by insurance itself) as an infringement of right– which might arguably interfere with either a personal or religious belief– or, in the case of those forced to insure their children– the right to raise those children–in accord with the living remnants of the substantive economic due process cases above– in a manner the parent sees best–i.e., not subjected to the moral hazard problem– but raised with a strict sense of personal responsibility. (I’m just spitballing here–the key, as Prof Hall is to get to a fundamental right so that the Court must employ the “strict scrutiny” standard– or at least intermediate scrutiny). But, the point here is this– this (and what Prof Hall was kind enough to do for us on this blog) is the sort of analysis requisite to consider whether or not something is Constitutional or not– and that is a far cry from “we should.”
And I know you want to be able to just say– “THAT’s wrong!” (see above, Natural Law, Jury Nullification) and as I myself am someone with a rather fierce libertarian streak I understand–but the law is not that easy. Hey, I hope this serves as some sort of brief guide.
As for the moral/immoral aspect– it’s your tone– the personal attacks. the “love it or leave it” attitude. Are they really necessary? Is there no room for people of good conscience and love of country to disagree? Having said that, I assure you– I am neither leftist, anti-capitalist, or elite.
Take care
mjr
Michael,
I have a copy of the constitution right here, I am looking all through it and cannot find anywhere where it says the federal government can take away my freedom. Please tell me where it says congress can mandate that Americans gives up their rights to choice and must submit to government run healthcare? Did I miss that in article one, section eight perhaps? Help me out here Mike, nothing you or Mark has said validates your “interpretation”.
Honestly I cannot believe you or Mark or anyone would enjoy giving your rights away to the current crop of criminals that infest our government. The last administration and congress was very bad, and the current administration and congress are orders of magnitude worse. Rule of law has been cast aside and stomped on. I gave you a link to proof, the math does not lie, that the government is corrupt and interested primarily in stealing taxpayer money. And yet you argue still to reduce your own rights and to pay more money to this same corrupt government. Please do your due diligence on this current federal government before you shill for them to engage in illegal legislation. You might actually sound intelligent then.
Ok, you don’t have to leave the country. You could go live in the socialist paradise that is western New York. No pesky conservatives anywhere. It is an economic desert, a wasteland, population and business cannot leave fast enough but that is the fruit of the collectivism tree that you and Mark Hall seek. Enjoy! Be proud that you seek to enrich corrupt government officials.
Good luck taking away your own rights and raising taxes on yourself and your children.
Dave
Whoa, the vitriol, please stop if you’d like to be taken seriously, Dave.
This constitutionality issue has definitely become a “talking point”, it was raised by a woman in our town hall mtg, the wife of a soldier just sent to Iraq for I don’t know how many tours now. Of course I hope he returns safely to his family, and btw, Congress is supposed to declare wars, but that’s not been adhered to, has it? And it’s cost how many billions/trillions now?
Others followed her lead, their argument: government has no right to compete with private industry. Our congressman said, Well, how about the VA? She said, it’s part of the constitutional right to raise an army/navy. Our congressman should have said: Fine, that accounts for the Pentagon’s medical facilities, but the VA facilities are for former service people, and that’s nowhere in the constitution. Neither is Medicare or Medicaid.
I’d add: Slavery was part of the constitution, counting slaves as 2/3 of a human was part of it. So was: No voting rights unless you’re a property-owner. So was: No voting rights for women because women can’t own property - women are men’s property.
Our doctors used to be paid in-kind: food, goods, services in exchange for treatment. They also rode around in buggies and made house calls. Times change. Try paying your doc with a meal, or even 100 meals. Won’t work. New systems.
Our doctors didn’t know about germs - a woman, I recall, figured that out. To try to keep Americans safe in medical settings, laws were passed to make sure germs were minimized and eradicated when possible. I like those laws, and no, they don’t guarantee compliance, but at least they’re there, at least we have the option to press criminal charges against a doctor or nurse with filthy hands and medical instruments dipping into our bodies and making us sicker.
Point being, we’re not going to reinstitute slavery, or take away women’s rights to own property, or stop folks who don’t own property from voting, because the Constitution said so. We have amended the Constitution. We added the Bill of Rights to limit federal power. It is, thankfully, a “living document”.
Since these entities would operate on a national-scale and in commerce, I can’t see where the current proposals would be unconstitutional.
Any co-ops operating across state lines would require Federal legislation to create federal legal underpinnings for groups of individuals to assert what are really Tenth Amendment rights.
I believe mandating health insurance coverage is unconstitutional, and your article did not provide supporting evidence that it is constitutional. I am very interested to hear about any cases that suggest such a mandate would be constitutional, so hopefully you can provide such supporting evidence.
The Supreme Court’s rulings imply the commerce clause only provides Congress with powers directly relating to interstate commerce, not indirect. Health insurance falls short of direct impact, so it would fail to survive judicial review just as the Violence Against Women Act of 1994 did (US v Morrison). Even with all the supporting data, the Court was unconvinced.
Lack of insurance is even less direct as the mere fact someone lacks insurance does not mean they lack the means to pay for medical treatment they seek, and there is no constitutional guarantee that an individual will be provided with medical treatment for which they cannot afford. I see no case for lack of health insurance being directly related to interstate commerce. Imagine such a law passes and a case is brought up by an uninsured individual who has the means to pay for treatment. What defense can exist in that case? The majority is not allowed to take away the rights of a minority in the United States, and it only takes a single individual to overturn such a law.
“The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation.”
Your explanation, and thus your reasoning, is flawed. Your explanation is not a simplification for a “lay” audience, it is a philosophically driven reconstruction of the law - in particular, constitutional law.
You are correct that the “commerce clause” of the constitution has been stretched and distorted to permit federal regulatory invasion of nearly every aspect of American life. However, this new mandate is akin to a “citizen tax” or a “living tax”. Nothing is produced or created which is being taxed. No services are provided which justifies this tax except the forced medical programs proposed.
The connection between citizens having no medical insurance and general economic struggle in this country is thin and very best - unless you are buying the political hype. As a nation, we have allowed ourselves to be taxed to irrationality.
People make calculated choices with their liberty. When we allow our government to make all of our choices for us (forced medical coverage being just one) then we choose to no longer pursue liberty.
What if they just raised all the marginal tax rates (except the top one) by 2% and then gave a $10,000 credit to everyone who was covered by health insurance?
Anthony, that would be within the powers of Congress. There is a huge difference in a tax credit for doing something and a tax penalty for not doing it.
America is about freedom. I want my freedom to be uninsured even if I’ll never actually be uninsured, just like I want my freedom to own a gun even though I probably never will own one.
The author’s thesis is twisted as is the view of many of our politicians. These are the same people that think its OK to accomplish what they can’t acomplish legally through the use of extorsion. Take the seat belt laws. We don’t have a national seat belt law but congress uses the threat of with holding federal highway funds to accomplish their designs. My question would be, why do we send highway funds to DC in the first place. The same twisted thinking is present with FORCED health insuarance.
It is an issue the individuals RIGHT to determine their own destiny. The reason we are even having this debate is because the powers to be have decided that they know better and have designed a one size fits all solution to solve every individual’s health problems.
The only way to fix our government is to limit its power and by extension money. Perhaps one day there will be some type of revolution to restore power to the people. Our country is so divided currently that I can see a split where some states become separate nations. The thinking of the East coast and West coast are trending toward having nothing in common with the other parts of the country.
LIBERTY IN THE USA HAS BECOME A MYTH PUT FORTH BY LYING POLITICIANS IN DC
Virginia,
Living yes, but it’s not a playground for political philosophers or utopians. It lays out a structure for government bounded by principles of individual, let me say it again INDIVIDUAL, liberty. You are correct in identifying how the document, as originally laid out, conflicted with those principles; and lo an behold, the course of history and a moral awakening fixed those problems. But those changes, unlike the broadening of control over every aspect of the economy by a statist interpretation of the commerce clause, were consistent with the founding principles of individual liberty. What the advocates of limited government bemoan is the expansion of state control over the lives of its citizens. No fair-minded person can look at what the Obama administration is doing an say that individual liberty is not at risk.
Prof. Hall nearly nailed it.
First, he noted the two issues: 1) Congressional power, and 2) Individual liberty.
He literally wrote a model answer on the first issue, except he might have used “obscure” for “archaic” in reference to the per capita tax issue.
Health insurance is clearly an interstate commerce question. As such, Congress can regulate it completely. It could ban it, and it certainly can require people to have it, simply to regulate the market.
The Congress can clearly require any living resident to have insurance (corporations and estates probably not), with whatever penalties and exceptions the limitations of democracy might provide for. Even criminal penalties, like in the auto context, would be appropriate normal penalties.
This leads to the second issue, which was not well-developed.
First, we should note that David Dude is now a radical iberal on Supreme Court judges.
He believes he has a “right” to be uninsured. Huh? Where is that in the constiution? Since he has a copy, he should identify this “right” to be without health insurance. Does it mention the “right” to be without car insurance? (Try that one in court if you need a bad day.!)
Frankly, he is a believer in “fundamental freedom”, which is the direct opposite of “strict construction” practiced by Scalia, Thomas, Alito, and Roberts. The one new right they supported, guns in Heller, seem more of a political vote, than a belief that we have fundamental freedoms, beyond the constitution, and state laws.
Second, to decide whether the mandate violates what little individual liberty we have left would require much, much, more information.
But, with a simple tax penalty of $900 per person, as talked about yesterday, and with probable exemptions for the wealthy, and religious, (thereby making the law rational and not oppressive) it would be SHOCKING for the Supreme Court to find that this was such a “fundamental” right, so as to strike down the law passed by the Congress. They just don’t find new “fundamental rights” that often. The right to be without health insurance on pain of a $900 tax penalty, is simply too new to be protected! Heck, the Constituion doesn’t even mention a tax penalty or health insurance.
THE MANDATE IS A POTENTIAL HIDDEN OPTION.
If it is not a crime, but simply a tax deduction or penalty, then it is not really a mandate. Medicare is a mandate, an I.R.A. is a tax incentive.
Advice:
If you are feeling angry or wealthy, get some religion or prove your wealth and take the exemption.
If you are feeling honest, lucky, and healthy, just pay the penalty and save the few thousand.
This gives the taxpayers the money, without any services or risk.
If you are feeling smart, buy a health policy with a very large deductible. This puts the affordable risk on the consumer, and the unaffordable risk on the insurer. You control the vast majority of choices and costs.
The “Commerce Clause” that gives the government supposedly unlimited power these days does so only because it has been misinterpreted. It is true that the misinterpretation makes mandated health care legal, but that is not the same as being constitutional.
There was a time when the owning of slaves was legal even though that practice is obviously unconstitutional. At the time, the courts declared slavery constitutional by misinterpreting the constitution.
Just because the courts declared slavery constitutional then, and mandated health insurance constitutional now does not mean that it is “really” constitutional. The courts are made up of human beings who are not perfect and therefore their decisions are not perfect.
The goal of the constitution is to guarantee freedom to the fullest extent possible. It is not perfect, but the intent is often lost. To me, constitutional means that the law in question is consistent with the intent of the document. Not that the law is consistent with what a court of imperfect individuals have interpreted the “words” of the document to mean.
The commerce clause is a perfect example of this. The courts are only looking at one word in the constitution. The word “regulate”. The courts don’t think about the intent of the constitution, instead they grab a dictionary and pick apart this one word. They look up that word and see that regulate means “to control”. Well obviously that means that congress can control all forms of interstate commerce right? The courts don’t stop and think how that definition is an antonym of the word “freedom” and is blatantly not the intent of the constitution.
The constitution was not written to control, it was written to free. Is this the world you want to live in? Where the government can so easily violate your freedom by playing word games?
You can twist words to justify anything. Hitler wasn’t just some lunatic that mindlessly slaughtered the Jews; he did so by justifying it. That’s how he convinced an entire nation to follow him.
I find it disturbing that so many people can so easily twist words in this way. How can you live with yourself knowing that you are making an argument by playing word games to enslave your fellow human beings? I would rather die then take part in the suppression of freedom of another.
So if I get the point of the forced mandate, you are telling me that if I don’t have insurance, someday in the future I might get sick and go to the emergency room, and I might not pay my bill, which might cost you money, so you are going to charge me for that now.
So, someday in the future I might rob a bank, are you going to throw me in jail for it now?
To me, that gets to the heart of the unconstitutionality of it. You are seeking to punish me now for a crime I might or might not do in the future.
On top of that every major insurance company has pled or been found guilty in a court of law for breaking the law, repeatedly. REPEATEDLY. So you are going to force me to pay criminals as punishment for a crime I may or probably won’t commit in the future. Way to go banksters! Instead of Rico-ing these criminals into oblivion you call me a criminal and steal my money to pay off the real criminals. You know, I think the mafia is on line two, they are having a tough time and want to speak to someone about their bailout.
If the government that is supposed to protect us from criminals is on the side of the criminals, what do we need a government for?
There is a telling analysis of developing countries that plots economic development vs. the number of lawyers per capita. At the very low end (1 lawyer per 100,000 people, for example), the contracts are not well-enforced and economic development languishes. Then in the mid-range, economic development picks up quite nicely. At gretaer than some level of the number of lawyers (dependent on population and form of government), the economic development starts going into the toilet, because there are too many lawyers and they are fighting or creating stupid laws or interpreting laws in odd ways.
I think the US has gone past the tipping point, and the pointy-headed lawyers in academia have lost complete touch with reality. I cite the “torture” arguments that academia has produced as well as the trashing of the Constitution.
Did it ever occur to anyone that a 1000-page bill for health insurance is ludicrous when the entire Constitution is less than 20 pages?
Judge Paul said:
He believes he has a “right” to be uninsured. Huh? Where is that in the constiution? Since he has a copy, he should identify this “right” to be without health insurance. Does it mention the “right” to be without car insurance? (Try that one in court if you need a bad day.!)
————————————————————-
wow. This is so wrong-minded as to be dangerous.
The Constitution addresses primarily the rights of the government, not the people. It goes without saying that you have a natural, God-given rights to life, liberty, and the pursuit of happiness, and the government has very limited rights to interfere with states and/or individuals.
Many people drive without insurance, in many states. They must sign an economic liability statement and show that they have the means to pay for accidents, but they are not REQUIRED to have insurance. Furthermore, one is not required to have insurance if one does not drive. The states define these insurance laws, not the federal government. So these matters are very different.
Regulation of commerce among states COULD be interpreted to include the giovernment’s “right” to require that individuals purchase health insurance; in the same way, parts of the Constitution COULD be interpreted to force states to allow abortion or the theft of someone’s land to build a shopping center. You COULD also say a dog has five legs if you call its tail a leg, but you would be logically wrong to do so in each case.
What is it about law school that makes one lose their common sense and logic?
Is it because the lawyers have an agenda and will spout any nonsense to achieve it?
Nimble legal minds like yours have done great harm to the civilized world. It’s not about whether our federal government CAN mandate health insurance, but rather whether it SHOULD. Your support of gov’t-mandated health insurance lacks any moral foundation.
I’m not a constitutional scholar, and I’m likely to misspell things and write poorly, but I’m not so stupid as to think something is wrong with the federal government mandating that I purchase something. If the Constitution doesn’t protect my economic liberty as this scholar claims, then it SHOULD! I understand the constitution to be a list of enumerated powers given to the federal government, all others are reserved to the states or the people. If the constitution gives the fed the right to mandate an individual to purchase insurance without any other justification except to say it is taxation (not a penalty) or to regulate commerce between the states, then we truly have no freedom or liberty. What would stop the government from passing a law mandating you to buy a domestic automobile - justifying it by how the nationwide price of domestic autos will go up, creating work for good American union workers? How about the recent bubble burst of the real estate market? The fed could have regulated every American to buy “mortgage” insurance, no matter if they own a house or not. The spreading of the risk would have made statewide prices for such a policy to go down and if people defaulted on their mortgage, there would have been plenty of insurance money out there to cover their loss. If the fed only has to show that there is a national effect on cost of a national commodity, what prevents them from mandating each one of us purchase? Nothing, if we listen to this guy. Maybe the Constitution needs an amendment!
It is unfortunate that Professor Hall knows so little about a subject about which he obviously thinks he know so much. I pity his students who are being taught so much garbage. It is equally unfortunate that Judge Paul is on the bench. He, too, obviously knows very little about the constitution.
First, we must start with the basic understanding that ALL rights and powers reside in the People. This includes the right not to be insured. The very fact that anyone would ask where one finds that right in the constitution shows how little he knows about the matter. ALL RIGHTS are held by the People, including the right not to be insured. Some few of these rights have been delegated to the States. A smaller number of these rights have been delegated to the federal government in general, with a still smaller number of these rights have been given to Congress. The few powers given to Congress are enumerated in the constitution. Any power not specifically delegated to Congress in the constitution remains resident in the People or has been delegated to their various States.
Second, even those congressional powers enumerated in the constitution are not unlimited. As Thomas Jefferson wrote: “Our tenet ever was…that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.”
Third, the fact that Congress can regulate interstate commerce does NOT mean they can mandate such commerce from those who choose not to engage in it. Does Professor Hall seriously think that Congress has the authority to require him to purchase 3 avocados each week? or a new shirt each month? or a new automobile every year? How absolutely ridiculous! If we choose not to engage in commerce, Congress has no power to compel us to do otherwise. Such is not among its enumerated powers.
Fourth, the limited power to regulate interstate commerce conferred on Congress by the People is far different from the broader power the People conferred on the States. States have been given general police powers, something the federal government does NOT have. Recently, for example, in United States v. Lopez, the Supreme Court reminded Congress that the interstate commerce clause is not a grant of general police powers. The broader police power conferred by the People on the States allows the States to require us to buy auto insurance. But this is a power the People have denied to Congress and, therefore, Congress has no power to compel us to buy insurance based on nothing more than our existence as citizens.
It is most disappointing to see professors and judges who are ignorant of these simple facts set forth above.
Fortunately, the Supreme Court of the United States appears to understand at least some of these simple concepts. For example, in Railroad Retirement Board v. Alton Railroad Co, 295 U.S. 330 (1935) the Court has said:
“The catalogue of means and actions which might be imposed upon an employer in any business, tending to the satisfaction and comfort of his employees, seems endless. Provision for free medical assistance, nursing, clothing, food, housing, and education of children, and a hundred other matters might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. Can it fairly be said that the power of Congress to regulate interstate commerce extends to the prescription of any or all of these things? Is it not apparent that they are really and essentially related solely to the social welfare of the worker and therefore remote from any regulation of commerce as such? We think the answer is plain. These matters obviously lie outside the orbit of congressional power.”
Notice, “THESE MATTERS OBVIOUSLY LIE OUTSIDE THE ORBIT OF CONGRESSIONAL POWER.” In other words, Congress cannot mandate the providing of medical assistance, among other social benefits. I hope Professor Hall will continue his study of the constitution until he comes to understand the simple principles outlined above. If not for himself, at least for the benefit of his students.
Interesting thread. I think that Brandon makes a good point in that many actively enforced laws on the books today may appear to many citizens as being either contrary to the intent of the constitution or falling outside of the federal government’s enumerated powers. However, such laws have nonetheless been deemed constitutional by our courts, under the system established (by the constitution) to determine said constitutionality. In other words, under our current system, the courts determine what is “constitutional” and what is not. Thus, the appropriate question in this case is not whether James Madison would find a mandate of health insurance (or anything else for that matter) consistent with the document he wrote, but rather how our current court system will answer that question. And we all know that courts have increasingly given more latitude to the federal government under the commerce clause, and they likely will continue to do so because judges are not elected by the people, but rather appointed by….(wait for it)…ah, yes…the people making the laws that regulate interstate commerce. If we, as a people, want this cycle to change, we need to elect people to The Congress that value individual liberty above job security and value minimal government intervention in everyday life. However, be careful what you wish for, because regulation from folks like the FDA (under the commerce clause) keeps us from ingesting food and drugs that might otherwise kill us or have hideous unintended side-effects, and there are many other examples of helpful regulation. The market economy is a flywheel and regulation is the friction or resistance applied. Too little resistance causes the flywheel to spin out of control off its hinges and causes just as much damage as to much resistance which renders the wheel immobile.
That said, I am about as right-wing as they come, and I am actually in favor of mandating the purchase of health insurance. Why? Because health care is not purely a consumer good and the market for health care is not a rational market. In a rational market, there is a price where the buyer will walk away. If you are a cash-pay patient dying of a heart attack, at what price do you walk away? Furthermore, our perception as a society is that it is a moral imperative to heal people no matter the cost. That means that even if a cash-pay patient shows up at the ER in the midst of a heart attack and can’t afford the care, he or she won’t be turned away, and someone (taxpayers, insured patients, or shareholders) will have to foot the bill.
There is no free lunch. If turning away a dying man at the emergency room door (the free market solution to no mandates) is unacceptable to us as Americans, then we have already cast our lot as to whether or not health care is a right. Now we just have to decide how to pay for it. For the poor, the taxpayers are going to foot the bill in any circumstance. But for those that could afford private insurance and choose to purchase other things instead, yet cannot afford to pay cash for their open heart surgery, I prefer not to subsidize their lack of personal responsibility.
“Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy.”
I think you mean to say that congress has ample power to *control* just about anything in the whole country? Why would there be an enumerated list of powers if the commerce clause, or as another favorite loophole clause, the necessary and proper clause, opens everything up? Also, the word regulate used to mean “to make regular” as opposed to “control” which is a new favored definition. How can someone like you say with a straight face that it can regulate “just about any aspect of the national economy” ? Can you name one thing that happens in daily life which is one way or another not affected by money? There’s nothing. So the constitution may as well just have said “Government can do as well they please”, but I don’t think you could say that one with a straight face.
“I have a copy of the constitution right here, I am looking all through it and cannot find anywhere where it says the federal government can take away my freedom. Please tell me where it says congress can mandate that Americans gives up their rights to choice and must submit to government run healthcare?”
You idiot. It is not a question of stripping freedom, as the Right and its ilk have so faithfully parroted. He’s speaking to Congress’ ability to mandate insurance by means of taxation, which has clearly been established through precedent. Read the article.
I really have to take issue with the casual dismissal of the argument that the power to regulate does not include the power to mandate. To say that mandating is simply a strager form of regulation is to allow a de facto command economy. If the congress can mandate what we purchase, they can mandate how we spend most or all of our money, thus directly controlling what markets exist, what products are available, who is allowed to make money, who isn’t. The link between mandatory purchasing and the obliteration of individual sovereignty is obvious by inspection. I’m finding it hard to believe that the courts are not going to consider the consequences beyond the lexicon of whether or not “mandate” is part of “regulate”.
Heck, if this sort of thing were Constitutional, then surely the Congress would have mandated the purchase of war bonds in World War II. In such a case, the argument would be even easier, because money from war bonds went directly to the purchase of goods and services in the interstate domain. Similarly, if this statute is allowed to stand, then we can expect to see mandatory purchases of savings bonds, alcohol thinned gasoline, electric cars and tofu. It’s all interstate commerce, baby, mandate away! (And don’t tell me these don’t relate to the “national cost” the way health insurance does. The Supreme Court has already ruled, in many ways, that consideration of “national cost” is not sufficient to fall with jurisprudence of the Commerce Clause.)
The courts are not only charged with determining what is a correct interpretation of the Constitution, but what is a right interpretation consistent with the general intentions of the document and its writers. Any language can be construed to violate the spirit of the thing and they know this. Direct, central control of individual commercial transactions violates several broad principles already laid out by the courts, of which the most prominent is the avoidance of a centralized government and the maintenance of division of powers between central and local government. To allow a mandatory commercial transaction to be included within the power of regulation will anul reams of findings which prohibit the federal government from doing things just like this.
Brent,
Thank you for digging up RRB v. Alton! I was leaning on Lopez and came up short because its findings were predicated on the disconnect between gun ownership and interstate commerce. In that purchasing health insurance is, in fact a commercial transaction, I wasn’t sure Lopez would be sufficient to exclude it from the domain of interstate commerce. (Except for the simple fact that health insurance is an intrastate transaction, leading us to the need to show impact vice eligibility for direct regulation, but that’s a different issue.)
However, your finding clearly shows case law providing specifically for the exemption of health insurance purchasing from the reaches of the commerce clause. If an employer mandate is unconstitutional, so then is an individual mandate, as they both qualify for the distinction between social welfare and commerce. Whether or not my employer buys it or I buy it, its mandate of purchase is outside the commerce clause.
Yeah, it’s a 1935 ruling, but it’s on the books. Thank God.
Little or no attention is being given to the Fifth Amendment’s prohibition of Compulsory Speech….except in extraordinary circumstances like Income Taxes, the draft, grand juries, and doctors having to report shooting and child abuse, etc.
If the nation’s public health care was public-administered funded by income taxes (Single Payer) there would be no Constitutional questions. After all, health care for all is in the health interest of all…even of Republicans who likely don’t want to get the plague from un-covered, un-treated immigrants, legal or illegal.
A problem with the mandate is that it is not just about Public Interest matters concerning doctors, hospitals, medicines,and health care in general.
With private insurers being the entities to which we would be compelled to speak (with words, but also money), we are forced to also contribute…even waste… revenues on things like insurer advertising, lobbying (for legislation we support?), corporate jets, CEO bonuses, campaign gifts to political candidates (the ones we’d support?) and to lawn care and brass polish at corporate headquarters.
When it comes to for-profit insurers, we have all the above non-health-related problems but also the insurer investment situation…where insurers may invest in some of the most health-damaging industries on Wall Street, in businesses that may be competitors to our business or personal investment holdings, in firms that may violated our moral-religious-political beliefs, and in pharmaceuticals—with that giant conflict of interest in the care delivery department.
A mandate forces people to harm their and their families’ health, economy, and constitutional rights. To even debate whether or not there ought be a compulsion to patronize such an industry is as bizarre as debating whether or not to allow cannibalization of babies.
Mark Hall has three problems here:
1) He equates regulation with mandate: “but a mandate is just a stronger form of regulation.” Not even close in Webster. If someone does not purchase health care insurance, it is not there to regulate. They could mandate them to purchase it (clearly unconstitutional), then regulate it.
2) His Non Sequitur/ Ambiguous Assertion falls flat: “In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat.” So, because I do not have the right to un-something, Congress has can mandate that I have it. i.e. I don’t have the right to be unclothed - so Congress can mandate I pay clothing insurance. Absurd.
3) He’s does not view the Constitution from the Founding Father’s perspective of inalienable rights.
Mark’s argument is “unconvincing and deeply flawed” in my opinion. The article’s he links and deems as such, refute him very well
*rd1776*
First I take my hat off to all participants for providing sincere commentary on this topic. I don’t have a degree of any sort but after several months researching Supreme Court rulings and a multitude of other documents I concluded the “commerce clause” is the most likely argument to be made for nationalized health care. I’m happy to have finally come across reasonable dialog on the topic.
I’d like to inject a concern and appeal to this group given its understanding and sincerity. It seems to me almost all of those public responces (politicians and other talking heads) to the constitutionality issue emphatically state or imply the question has been answered. The worst example, denying even the validity of the question, being Pelosi’s “Are you serious” response. In general almost all seem to be trying to convince the public the matter has been resolved rather than a matter of much ongoing adjudication and opinion.
Chief Justice Marshall stated in McCulloch v. Maryland, 4 Wheat. 316 (1819):
“The [federal] government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.”
With this in mind from my point of view all respondents, especially elected officials should preface any “conclusive” response as speculative.
It’s important that the America people understand this and make their understanding clear to our elected officials. It’s a travesty that our elected officials get away with publicly portraying the constitutional question as resolved in either direction.
Assuming you agree I appeal to you to occasionally make this point for the general publics sake. What ever happens the stakes are high and the only conclusion I can draw is we will all have to enjoy of suffer the results.
What Mr. Hussein Obama never factored in is that those of us healthy, uninsureds who are now forced to buy insurance willl now be running to the doctor for every sniffle, and backache.
Do you really think that you’ll make me buy insurance and I’ll do nothing to get my money’s worth? Think again. I’m 54, and in the past 35 years have never seen a doctor except to get an annual checkup (all paid for by me-including two colonoscopies).
Now that I’m forced to buy insurance, you can bet I’ll be running to the doctor every chance I can get, just like the smokers, obese, anaphylactics, etc.
I wonder how many obsese people there are out there, crying “health care crisis”
DaveDave - “If you yearn for the failed policies of socialism then move to europe please”
Actually, I’d say most Europeans are very happy with their health policies, and are satisfied with their approach to capitalism (actually regulate it.)
“The thinking of the East coast and West coast are trending toward having nothing in common with the other parts of the country.”
Thank God for that.
This is how I see it in a very general sense of the word… Long before I was born this country was an actual Democracy. People say stuff like, we can’t keep our old Democracy because the forefathers could not foresee the problems we have today, or because change is inevitable. I disagree, even though what I think will matter little in the grand scheme of things. I’m not a Lawyer, Professor, Political Scientist or even some mental giant that professes to have all the answers, but this much I know to be true. Instead of preserving our democracy, and keeping our country in line with its founding principles? We allow politicians (which are just misguided salespeople) to chop up our constitution in the name of money and special interest without much regard for the individual. Not a big surprise to me that this country is quickly moving toward a Socialist regime, under the disguise of protection for it’s people. We have no one to blame but ourselves. I can hear the new political battle cry ringing out of the White House ( the American people are to stupid to know whats good for themselves, so we need to run it all and dictate whats best.) Well, honestly it seems like the blind leading the blind to me! We’ve managed to let things get this bad; which is generally based in a complete LACK of common sense for what priorities use to make us great. Not to mention, mass complacency, lack of sacrifice, and failure to act when needed and where action actually is needed. God forbid that this country should stand in offense to any body in order to preserve itself; we wouldn’t want to seem politically incorrect. So what next?? Lets not complicate a damned milkshake and package it however you like; If we a forced into buying health care then nothing will be left safe for the American people any longer. Democracy to Capitalism to Socialism, and then Socialism to the final destination, Communism; then the government will truly run it all. If we are not careful our new motto will be; In government we trust, a nation that use to be citizens who are now just sheep.
Mr. Hall,
“… but a mandate is just a stronger form of regulation …”
Um, no, they are two different things. Regulation restricts action. A mandate forces action. This is why modern double-speak is so dangerous. Take for example the invention of a “right” to healthcare. I challenge anyone to show me that a “right” to a service does not make a “slave” out of the provider of that service. Additionally, rights are not a function of need.
“ … The only possible constitutional restriction is an archaic provision …”
What bearing does the age of a provision have on anything? Is that how you are going to support your argument? If something is old then we can ignore it? The constitution itself is pretty old …
“ … Purists complain …”
A purist? As opposed to what exactly?
“… tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.”
What?? So the very act of ignoring the Constitution renders it moot?
The Constitution was written so that one did not need to be a legal scholar to understand it. In fact, based on your text, I might gather that a legal degree is required not to understand the Constitution, but only to twist its logic.
By your “logic”, a mandate to purchase a GM vehicle to support the American auto industry is just as constitutional as a mandate to buy health insurance. The question is not “do I have a right to be uninsured?” The question is, “Do I have a right not to purchase insurance”. Do I have a right not to purchase a Ford?
As far as your arguments concerning precedent, All I need to do is refer you to Dred Scott. The courts are NOT infallible, nor are they the final authority. Especially when they, like yourself, twist the rule of law out of all proportion in defiance of reason and logic in order to further a political end. The Constitution is a contract between the people and the founders. Not between the founders, lawyers, and judges.
The founders are all rolling in their graves, and I think you know it.
Absolutely NONE of these lengthy legal diatribes, explains where in the Constitution is congress given the power to force me into a commercial exchange for simply being born / existing. (something I had no control over, unless we are going to start saying that by not committing suicide after birth I chose to be here.) Nor do this babbling explain where they have the power to control my conduct, by penializing me for not conducting this commerical exchange, simply because I exist.
Can they also force me to work or enter into a contract with an employer, so that they can tax me or penalize me?
The one question that Mark didn’t bother asking himself or demonstrating in his tripe above is that if this broad power exists, why has congress never tried to implement something like this before? Mark knows why. They’ve never had this power. He’s a liberal, making excuses per usual.
Everything Mark says even flies in the face of his liberal Roe v Wade decision. Maybe he should read that opinion sometime in this context. If his head doesn’t explode while reading that opinion while remembering what he wrote here, maybe he can return to elaborate about how he completely overlooked that one.
Simply put, Mark Hall is a political leftist who spent time getting his JD at the very same school Barack Obama got his law degree from, the University of Chicago. I would expect, with a little digging, we’d find that Mark and Barack are pals. I doubt Barack even had to offer you anything to carry his water, did he, Mark? Heck, remember when Obama thought the DC gun ban was constitutional! HA!!!! Another great endorsement for the University of Chicago, eh? You see, people like Mark and Barack look for ways around the constitution to implement policies their leftist worldview inspires.
I wouldn’t put any stock in what Mark Hall says on this matter. He’s a leftist shill and he’s being intellectually dishonest, nothing more.
/end
I would imagine inconvenient facts wouldn’t stop you from spewing diatribe, sans analysis–but what the heck– Barack Obama received his law degree from Harvard. He taught at Chicago– as did Antonin Scalia.
Me and my family’s cure for government “mandates” for the purpose of socialism is simple. Others should follow what we are doing in opposition:
1. Be prepared to die before having to bow on bended knee as government rapes and pillages.
2. Do as we are and start taking your money out of the banks and invest it in food, water, clothing and alternative energy provisions. You are soon going to need those things anyway.
3. If you are healthy and don’t rely on your particular health insurance plan, drop it to send clear message. Already the health insurance industry is raising premiums, and their stocks on the exchanges are shooting through the roof! They are foaming at the mouth in expectations of vast profits. Dump them in concert with millions of others. We have!!
4. Exercise your full right to NOT SPEND on any corporation. Simply stop spending on all things not necessary to life and survival. Corporations will eventually get the message: stay out of government, stay out of our politics or… suffer massive boycotts from we-the-people.
5. If this passes, our family has already made provisions to completely exit this society. We will not be forced any further than we’ve been forced already. This is the end of the line for myself and my family. And all of us, including many friends who are jumping on board as well… have made plans to “disappear without a trace” so as to never be found via this fascist computerized method of government… EVER!
Prepare or be slaves!
I realize I’m late to this discussion regarding Railroad Retirement Board v. Alton. However, I wanted to point out that at least 6 federal court cases decided after Alton have recognized that Alton has either been abrogated, overruled by implication, or called into doubt by subsequent rulings of the Supreme Court. In other words, Alton is almost certainly no longer good law.
If Congress can mandate wages (Fair Labor Standards Act) and benefits (Family Medical Leave Act) then there is little doubt that they can also require that part of an employees compensation include health insurance.
On the question of how “liberal” I am, it’s worth noting that many health law professors consider me to be on the conservative end of the academic spectrum. Gregg Bloche, for instance, at Georgetown, puts me in the same league as Richard Epstein and Clark Havighurst, in his Stanford Law Review article “Trust and Betrayal in the Medical Marketplace” (vol. 55, 2002).
Mock & Tolin: The Constitutionality of the Health Insurance Tax
Rodney P. Mock & Jeffrey Tolin (California Polytechnic State University, San Luis Obispo — Orfalea College of Business) have posted Purchase or Else: The Health Insurance “Tax”, 126 Tax Notes 224 (Jan. 11, 2010), on SSRN. Here is the abstract:
With the Affordable Health Care for America Act, H.R. 3962, passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”
I certainly hope Judge Paul is not a real judge functioning in this society his assertions are incorrect and the views of this articles author are skewed. First the constitution makes it clear ANY law which is passed in opposition to the constitution is null and unefforceable and because it makes no particular refrence as to whom can challenge or make null the law it is the inferred right of the people to simply choose to make it null, they don’t need the Supreme Courts permission even though that would be much more practicle. The Suprmem court in fact does have the the right and responsibility to decide the constitutionality of law because the judicial branch is prescribed by the constitution, to enforce the law, and because the constitution is the highest law it must enforce the constitution first and nullify or ignore, reverse, or uphold the laws presented to it by Certioriari.
There are several reasons the proposed healthcare reform bills are unconstitutional, here as some of them:
1. No one is subject to denial of rights, nor are they subject to the force or forfeiture of rights just because that right is not specifically listed in the constitution or the amendments of it, in fact the constitution goes on to say specifically that their are rights in which the people are entitled to which are not specified in the constitution and that lack of specification is not an inference those rights do not exists
2. The interstate commerce clause does not allow the government to compell private citiezens who are not currently engaging in commerce with insurance companies to become compelled by force to engage in them and then be under the tryanny of the government who controls the commerce, in addition nowhere is the government granted the right to disallow citizens the right to choose not to participate in the commerce if they do not approve of the commerce “laws” enacted to that commerce, and if a person is not currently engaged in the insurance commerce or is engaged in the commerce if insurance within their state of residency particulary that of a company exclusively operating in the resident’s state the commerce clause has no authority because the commerce is not interstate
3. Imposing fines, using unfair and predetory IRS tactics to collect without trial, on the inability to pay for health insurance or against their will is a violation of the due process of law, and the violation of the forbiddance of bills of attainder, in which a person cannot be fined unless and until they are first convicted of a crime by a jury of their peers, and the tactic of palcing leins on property via the IRS without a warrant or conviction in a violation of the forbiddance of illegal searches and seisures
4. this bill also violates the common law right to medical privacy and dr. patient confidentiality, the simple act of disallowing persons from choosing their doctors is a violation of medical privacy.
5. In addition practices proposed, such as age and medical condition profiling, violate the equal protection of law, and allow bills of attainder, in which the government could unconstitutionally deny vital healthcare based on their belief only certain groups deserve the right to this vital care and that other profiled groups such as the elderly should not be entitled to same treatments of the “healthy and young” group. Profiling of groups to which different laws and services are granted or denied is not constitutional and is a bill or act of attainder
6. The governemtent has overstepped it’s bounds repeatly in what it can and cannot collect or distribute taxes for, medical care is not one of them
7. The government is not authorized to redistribute wealth, regardless of how rich or poor any citizen is
We have seen examples of what Americans do when their rights are threatened and when they are unjustly taxed, the revolution was sparked by taxation without representation, the Boston Tea party as a result of the Stamp Act, the women’s liberation movement among other things, fought for the right to vote for women being taxed but denied representation, the onslaught of protests against the Bailouts, is another example of th epeople reacting to this government abuse of power and blatant inference that certain texts give them these rights which of course they actually do not. Americans may be lazy, lemming, pushovers sometimes but once pushed to the edge, they will stand up and when they do I certainly wouldn’t want to be in their path, I would be behind them.