Morgen on October 24, 2009 at 8:55 am
There is an interesting discussion going on over at Hot Air regarding whether an individual mandate to buy health insurance would be constitutional. Ed Morrissey seems to have serious questions as to whether it would:
So I’ll ask again: What authority does Congress have to mandate that people buy a product? What precedent do they have to threaten people with imprisonment if they don’t buy a product merely for existing, as opposed to a prerequisite for accessing public roads as with car insurance? The reason why Pelosi, Leahy, and Hoyer refuse to answer those questions is because they don’t have an answer to them.
A few brave souls will argue that the “general welfare” clause means that Congress can mandate anything that they see as beneficial, but that misreads the word general â€“ which meant the welfare of the nation as a whole, not a responsibility to make each individual citizen’s life choices for them. The opposite reading would have made Congress a totalitarian monster, with the executive as its hatchetman, and the founders would have scoffed at such an interpretation.
The Constitution exists to limit the power of government and each branch, reserving most of the power to the states or to the people. Claiming that Congress has the power to dictate that we must buy into health insurance by claiming that all that is possible must therefore be mandatory is arguing that Congress has a dictatorial, unlimited power over every aspect of our lives.
For the counter side of this argument, I’d recommend this Politico article by UC Irvine law professor Erwin Chemerinsky. (Chemerinsky focuses on the Commerce clause to argue that Congress has broad powers to legislate rules and regulations dealing with the health care industry).
Here’s my take: I don’t know. And with all due respect to my friend Ed Morrissey and professor Chemerinsky, I don’t think anyone else really knows either. Simply because there is no precedent for this type of action by the federal government, as noted by this 1993 article from the CBO addressing the possibility of an individual mandate under HillaryCare:
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.
Unless I’ve missed something in the proceeding 15 years, this statement remains just as true to this day. And so given that this has never been done before, and the lack of specificity in the Constitution addressing this type of issue, I’d say it’s an unsettled question. One which likely would need to be settled by the Supreme Court.
Although I have sympathy for the argument for an individual mandate based on the free-rider problem, I think it would set a dangerous precedent for federal intrusion in other areas of our lives. And so I ultimately hope it would be held unconstitutional. But I have to say that I’m not optimistic this will be the case given the Court’s 200+ year history of legitimizing the expansion of the federal government under the Commerce clause.