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An individual mandate to buy ... a Malibu?

March 25, 2010 |  4:39 pm

The Times editorial Thursday defending the constitutionality of the new healthcare reform law drew a number of responses from readers asking a singularly important question: If it's OK for the federal government to order Americans to buy insurance, where does its power stop? For example, "brianb2970" wrote:

The reality is that Congress DOESN'T have the power to "mandate" that anyone buy anything. How about this: I'll accept your "mandate" to purchase health insurance if YOU accept a mandate that all law-abiding citizens MUST purchase a gun.

After all, the evidence is clear that society is safer with widespread gun ownership, violent crime rates fall, and at least gun ownership is a real right per the Constitution and Bill of Rights.

And "msplion" offered this comment:

So if for the general welfare of the United States, Congress decides that we should keep a car manufacturer in business. In their infinite wisdom they enact a law stating that we as americans just virtue being citizens can be mandated to buy Chevy? Or better yet, because it is determined to bring down the costs and use of healthcare and thus commerce, every american citizen shall be mandated to exercise 10 hours a week? Still sound Constitutional to you?

I'm not a lawyer, let alone a constitutional scholar. Nevertheless, I think it's possible to defend the individual mandate without granting the feds unlimited power to regulate individual lives.

In his concurring opinion in Gonzalez v. Raich, Justice Antonin Scalia tried to clarify the boundaries that previous decisions laid out for federal regulatory power. "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce," Scalia wrote. An important limiting factor, though, is that such rules must be an essential part of a larger regulatory scheme that "could be undercut unless the intrastate activity were regulated." He added: "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. ... The relevant question is simply whether the means chosen are 'reasonably adapted' to the attainment of a legitimate end under the commerce power."

The courts have already held that health insurance is interstate commerce subject to federal regulation. The healthcare reform law would build on existing rules in an effort to extend insurance to more people, in part by prohibiting insurers from rescinding policies or denying coverage to people with preexisting conditions. But that regulatory regime would be undercut by "free riders" -- people who wait to obtain insurance until they need expensive treatment. Another aim of the new insurance rules is to slow the growth of costs. But people who don't obtain insurance can undermine that effort by failing to obtain preventative care and relying on the most expensive venue for treatment: the hospital emergency room.

In sum, the bill regulates a form of interstate commerce, but that regulation would be ineffective without an individual mandate.

It's hard to make a similar case for a mandate to buy guns or GM cars. Start with guns. Assume the overall regulatory regime is designed to promote public safety, as brianb2970 suggests. Would it be undermined if some people chose not to own guns? That would be tough to prove.

The federal government regulates car manufacturing to protect public safety, improve air quality and reduce energy consumption. Would that regulation be undermined without a requirement that Americans buy Chevys (or any other brand)? Of course not.

As for mandating 10 hours of exercise a week, that one probably fails on multiple legal grounds. It's not essential to the new law's regulatory regime because it's neither the only way to reduce insurance costs nor a sure means to do so. Beyond that, it runs afoul of the less-well-defined notion of a "zone of personal autonomy" or right to privacy that the Supreme Court has recognized (see, e.g., Griswold v Connecticut from 1965). Many readers probably would argue that being forced to buy insurance is just as intrusive as being required to exercise, but at least the former is commerce. The latter is just behavior. 

-- Jon Healey

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