Florida Attorney General Bill McCollum is questioning whether it is constitutional to force people to buy health insurance, as the health care bills backed by the Obama administration require. This “individual mandate” is unprecedented and appears to exceed Congress’s power under the Commerce Clause of the Constitution.
As the Congressional Budget Office noted in 1994“,
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.
As the news story about the attorney general’s concerns notes, in Supreme Court decisions issued in 1995 and 2000, “the high court said the commerce clause is limited to economic activities that substantially affect interstate trade in goods and services.” (I was involved as an attorney in the latter of those two decisions, United States v. Morrison (2000)).
The individual mandate does not regulate activities, much less economic activities, but rather regulates based on inactivity, by penalizing those who decline to buy a product, health insurance (a product that young people generally do not need — as a young man, I did not go to the doctor or dentist, or purchase any drugs, for a 10-year period, and if I had become ill, my family could have easily paid my expenses).
That exceeds Congress’s powers under its Morrison and Lopez rulings, as I explained yesterday in a more extended analysis of the issue. However, it is likely that at least four members of the current Supreme Court would vote to uphold the individual mandate, since the Morrison and Lopez decisions were 5-to-4 decisions.
Other aspects of the health care bills have also attracted legal criticism, such as their racial preferences and racial discrimination (it discriminates against white applicants in some provisions, and against minority patients in others; both forms of discrimination drew criticism from the Civil Rights Commission), and the manner in which they regulate insurance companies.
Regardless of whether the individual mandate is constitutional or not, it is certainly controversial — as are other aspects of the health care bills, which most Americans oppose. As noted earlier, the bills would reduce life-saving medical innovation, raise many taxes, drive up insurance premiums and the deficit, break many campaign promises, and impose heavy burdens on state budgets. They would also jeopardize the quality of medical care for many, while imposing restrictions that failed when tried at the state level, and ignoring advice from federal and academic experts, and lessons from countries with universal health care, about how to keep costs down.