Thursday, March 25, 2010

Hypothetical Question

I read this debate about the constitutionality of the insurance mandate with interest.

Basically, the argument in favor, as I mentioned before, is that health care is a economic activity and congress has power to regulate economic activity under the commerce clause. Ergo, they can demand people buy insurance.

As a matter of constitutional law, there are two relevant questions in assessing whether Congress's mandate of health insurance fits within the scope of its commerce power. First, is Congress regulating economic activity?


The second question is whether the activity has a substantial effect on interstate commerce.

But if that's true, then it follows that they have the power to force us to buy anything they deem fit. Need a stimulus? Why have government spend money? Instead, each household needs to buy a new car this year or pay a penalty.

I admit that buying a car doesn't have the same importance as health care. Moreover, it doesn't have the same knock-on effects to other people if somebody doesn't own a car like health care does. So, politically speaking, it is highly unlikely that congress would do so, but that it still stands that under the logic used by many people to justify the constitutionality of the health insurance mandate congress has the power to do so.


George Pal said...

They could, as they’re going to be picking up the health tab, and in keeping with the theme, force everyone to join Jenny Craig or Gold's Gym.

Anonymous said...

Alright, I starting reading this paper (link below) but after 4 paragraphs wanted to stick two sharpened pencils in my eyes. You may fare better. It was authored last December and add to that since then Virginia and Idaho (?) passed laws before Ocare was passed saying you can't mandate us. Since Ocare passed VA filed suit costing them $350. Ocare medicaid state mandates will cost them more than 1 billion. They and all the other states will throw their best lawyers at the unconstitutional aspect. The leaders of the House, Senate & Pres. were sent letters by the states saying this (legal battle) would happen. They ignored them.

The summary of the article:


In theory, the proposed mandate for individuals to purchase health insurance could be severed from the rest of the 2,000-plus-page "reform" bill. The legislation's key sponsors, however, have made it clear that the mandate is an integral, indeed "essential," part of the bill.[54] After all, the revenues paid by conscripted citizens to the insurance companies are needed to compensate for the increased costs imposed upon these companies and the health care industry by the myriad regulations of this bill.

The very reason why an unpopular health insurance mandate has been included in these bills shows why, if it is held unconstitutional, the remainder of the scheme will prove politically and economically disastrous. Members need only recall how the Supreme Court's decision in Buckley v. Valeo--which invalidated caps on campaign spending as unconstitutional, while leaving the rest of the scheme intact--has created 30 plus years of incoherent and pernicious regulations of campaign financing and the need for repeated "reforms." Only this time, the public is aligned against a scheme that will require repeated unpopular votes, especially to raise taxes to compensate for the absence of the health insurance mandate.

These political considerations are beyond the scope of this paper, and the expertise of its authors. But Senators and Representatives need to know that, despite what they have been told, the health insurance mandate is highly vulnerable to challenge because it is, in truth, unconstitutional. And political considerations aside, each legislator owes a duty to uphold the Constitution.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. Nathaniel Stewart is a lawyer at the firm of White & Case, LLP. Todd Gaziano is the Director of the Center for Legal and Judicial Studies at The Heritage Foundation.

Mrs. P

The Ancient said...

Does the Japanese constitution have a commerce clause?


(Same rice, different chopsticks.)

Creative Commons License
This work is licensed under a Creative Commons Attribution-No Derivative Works 3.0 United States License.