David Rivkin Jr
It’s about time:
President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals. Consider one element known as the “individual mandate,” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?
My question? When has such a concern stopped the government in the past under either Republican or Democratic administrations or Congress?
Not that this isn’t an excellent question and I’m glad to see someone raising it. But you have to ask, would we be in the shape we’re in today if past administrations and Congress (not to mention SCOTUS) had seriously been concerned with the Constitution?
So, having had my say about that, let’s explore the point about mandated insurance coverage that David Rivkin Jr and Lee Casey try to make Their considered opinion is contained in a fairly short paragraph, and the answer is “no”:
The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.
Rivkin and Casey support their conclusion with case law and precedent which they claim would preclude a constitutional basis for an individual mandate in either the most abused clause of the Constitution – the commerce clause – or within the power to tax. Given that, they say:
This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a “benefit” that some part of the population would not choose to eschew.
Taxation as a means (such as being fined by the IRS if you don’t have health insurance) of enforcing the mandate is a Constitutional no-go as well:
Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision.
Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous — and therefore unlikely — scenario, advocates of universal health coverage must accept that Congress’s power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.
Sounds good and I’d love to believe it – but looking around, you have to wonder how we got to where we are today if we’re as committed to the limits imposed by the Constitution as these two believe. If you listen to them, this mandate business is dead. No can do. But we’ve watched our legislators and the executive branch – on both sides – consistently find ways around the obstacles (and case law) these two lay out there.
I want to believe it, but I’m forced by reality to say, “I’ll believe it when I see it”.
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