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An individual mandate to buy ... a Malibu?

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

 

Comments () | Archives (23)

The comments to this entry are closed.

andrew nelson

Nice try Jon, but no dice.

ANDREW P. NAPOLITANO asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: "There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Then he shot back: "How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

The Supreme Court in United States v. Lopez (1995), ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. (1) Truly commercial at its core. (2) has not traditionally been regulated by the states.

The Congress simply has declined "to keep regular" the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state. But the States have traditionally regulated health insurance. See (2).

Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix, by forcing someone to buy insurance, because that constitutes interstate commerce.

The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century. See (1) and (2).

What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with "free" health care that the rest of us will end up paying for.

Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren't upholding the Constitution—they are evading it.

Mitchell Young

As a matter of fact all free, white able-bodies males from 18 to 45 were at one time required by Congress to possess a firearm and more:

===

The Militia Act of 1792

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside...

every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
===

This law doesn't say how the militiaman had to acquire the musket etc. but he does have to have one. Notice that he could be called simply to exercise, and indeed the English militia regulations on which this law was modeled often specified that the local yeomen engage in a certain amount of practice. In this case the law requires both an acquisition, and enrolling/potentially exercise. Though passed by the founding generation, no doubt with the assent of some of the Framers themselves , it violates both the libertarian (and 19th century Supreme Court) view of the Constitution as protecting economic liberty as well as the twentieth century 'personal autonomy' view. Is does so for good reason -- the safety of the newborn United States and its communities depended on local militia to defend against Spanish, French, and Indian attacks, as well as slave insurrections in the South. And the free rider problem does come into play -- if men shirked their individual duty, the entire community would be endangered.

The Constitution's first years were pretty literal and practical; militia duty was required because that's what governments did, and the new Constitution didn't give anyone abstract rights to escape normal requirements of citizenship. Likewise, the commerce clause needs to be understood in a very specific context; it was devised to prevent internal tolls. It has properly been expanded to prevent states from enacting measures that would have the same effect as tolls -- a surcharge for ordering goods by mail, for example. But expanding it to what essentially amounts to a poll tax on every one resident in the US is really to finally break with any sort of limit on Congressional power.

Keefanda

I like my right to privacy.

How is this individual mandate not a violation of the right to privacy?

I have seen some argue along the line that this is just the power to tax. I claim that this argument is subterfuge, since it seems that this mandate is written as "do this private act of buying this private product, or else you're fined", and that this fine is not written as a universal tax to be "tax credited out of".

Why not instead a straight universal tax for a government service like oh, say, a strong public option?

If this is held up as legal, then what's to keep some future government dominated with religious conservatives - modern Republicans - including a future George Bush from using individual mandates cloaked in the power to tax as subterfuge for violating our right to privacy without end? Suppose they were to put forth the individual mandate "In order to protect America's children, you shall buy and use explicit content filters in your TV sets and computers, or you're fined." Suppose they were to say, "Oh, it's not universal and unconditional since it applies to only those who own TVs and computers." OK then?

There is no end to this very slippery slope on individual mandates.

Where is the ACLU? Where are the true civil libertarians?

Jon Healey

@Andy -- What, you don't trust Scalia? What kind of conservative are you? :-)

Seriously, had you followed the link to his opinion (hint: read first, argue later!), you would have seen that the Raich case came *after* Lopez, and that he was fully cognizant of the limits set by the prior ruling. No offense, but I'll take his interpretation of constitutional law over yours.

Jon Healey

@Mitchell -- Good argument! IANAL, as noted above, but I think it's safe for me to say that the court's current view of the Commerce Clause, among other things, is a bit different from its view in the 19th century. The court has taken an expansive view of the Commerce Clause in the past five decades, and I think the individual mandate fits safely under that umbrella.

LiberalReason

I still think it would be better and more consistent to give the insurance companies power to enforce the mandate via punitive fees against people with lapses in coverage than for the Federal government to do so. The fees would, of course, possibly be huge, but that would only make them more effective, and, eventually, given the competition, the fees would go down because the insurers would start looking at the more long term picture.

On the other hand, this law is better than no law. If it actually survives the challenges. I for one am not going to challenge it out of pragmatic considerations.

Jim

If the regulation is going to mandate all persons MUST be covered then the insurance companies are going to charge appropriate premiums to these individuals and our taxes should cover any necessary subsidies. What's the problem, unless you don’t love America enough to pay for it? :-)

JSA26

I still think the best Constitutional challenge has to do with the House passing a Senate bill that imposes taxes. Article I Section 7 says such bills must originate in the House.

There is also the fact that I can only buy an insurance policy issued in my state. So how can you call this Interstate Commerce?

If Mr. Obama, Ms. Pelosi, and Mr. Reid had negotiated a bill instead of bribed, threatened and extorted this one I think most people would be willing to work with it rather than search for a legal challenge. But that's just my opinion, I'm sure the far left see it differently.

Jon Healey

@JSA26 -- It's a house bill. HR 3590. There are a couple provisions of the bill that would enable you to buy insurance across state lines, such as the two national plans that would be offered through the exchanges. Besides, the Supreme Court has already ruled that insurance is interstate commerce -- see its decision in United States v. South-Eastern Underwriters Ass'n.

andrew nelson

@ Jon :) I trust Scalia, but I verify, don't you?

And I must actually differ with your definition of conservative. We, as a nation, have suffered under the benevolence of executive despotism, since the Great Depression. If you want to try to bend my philosophy of radical individualism to the word conservative, I could possibly compromise with you on that point and say 'pre-conservative', 'pre-' meaning before the executive despotism we allowed to be imposed upon us by the crisis of Depression.

Now, the reason I trust Scalia, in this instance, is that this decision does not invalidate Lopez, at all. It confirms it.

But in the case you cite, Scalia was explict. Congress could regulate, because the states declined to do so, and no 1oth Amendment violation, in regard to state sovereignty had occurred.

" Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation “inappropriate,” id., at 421–except to argue that the CSA regulates an area typically left to state regulation."

And, since you say, "No offense, but I'll take his interpretation of constitutional law over yours." Thank you very much. Now you're in agreement that Congress may not regulate intrastate commerce if it tramples the states rights to do so.

http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB10

The Virginia Health Care Freedom Act.

So, if it's unconstitutional for one state (add Idaho now), it's unconstitutional for all states.

andrew nelson

"@JSA26 -- It's a house bill. HR 3590. There are a couple provisions of the bill that would enable you to buy insurance across state lines, such as the two national plans that would be offered through the exchanges. Besides, the Supreme Court has already ruled that insurance is interstate commerce -- see its decision in United States v. South-Eastern Underwriters Ass'n."

@Jon,

I would disagree with this parlimentary slight of hand being a House Bill. Reid labeled it, as such, when Baucus moved it out of committee, is all. It originated in the Senate, not Congress. And Congress was where it should have originated and been voted on first. You remember the original, and only house bill, to originate in the congress, that was voted and passed with the Stupak Amendment, but was dead in the water when it reached the Senate due to the revolt in Massachusetts.


And you know that Jon. I find it curious that you are complicit in that conspiracy.

Brianb2970

Thank you for using a quote from my comment in your article, but I completely disagree with your blithe dismissal of my point as being unimportant.

The fact of the matter is that enhanced public safety is just as much a compelling interest as "universal healthcare"; in fact, the case can easily be made that it's even more so.

"Universal" gun ownership, as envisioned by the Founding Fathers, is not only a bulwark against the predations of criminals on individuals and society in general, as we've seen in the 30-odd states that have enacted CCW-on-demand, but provides the means by which the people remain the final arbiters of the fairness and limits of government power.

The Second Amendment is the one that makes all other "rights" possible.

Therefore there's an even more compelling argument to be made for "mandated" gun ownership than there is for "mandated" health insurance.

After all... no one gets out of here alive. We're all going to die someday, no matter whether you have health insurance or not.

The mortality rate for being alive is 100%, and always will be.

Jon Healey

@Brian -- Sorry if I sounded dismissive of your point. I brought it up because I've heard it a number of times, so clearly it's something on more minds than just yours. However, I think you're misreading what the court's Commerce Clause doctrine is about, namely, commerce.

We regulate gun sales for one purpose: to keep guns *out* of the hands of people who aren't supposed to have them. That's the entire purpose of the regulatory regime. So the key question, I think is whether requiring everyone to buy a gun would be an essential part of that regime. Clearly, the answer is no. In fact, it would probably undermine it.

Congress is regulating health insurance to make sure everyone has access to affordable health care when they need it. Is requiring everyone to buy insurance an essential part of that regime? Given the "free rider" problem, I think the answer there is also a clear yes. But I recognize that I'm in the minority among the folks who have commented here.

For more on this topic, please read what my colleague on the news side, David Savage (who *is* an expert on the Supreme Court), wrote today: http://www.latimes.com/news/nation-and-world/la-na-constitutionality27-2010mar27,0,7405718.story He goes into more detail on the meaning of the Raich case and other recent precedents.

Jon Healey

@Andy -- I suspect I'm wasting my time on this and should leave it to someone else to respond, but please -- a House bill is a bill passed by the House. Period. It's not the contents thereof. Allow me to pull an Andy Nelson here and quote the Constitution. Article I section 7 states, "All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills." Note how it says, "the Senate may propose amendments." Go back to the Congressional Record and see what happened on HR 3590. The Senate brought it up and then amended it, adding the language that you're, umm, not really fond of.

Much of the debate about this legislation has been about process, as if the Democrats did anything unusual legislatively. I'm not saying it's been ideal or pristine, but it certainly hasn't been extraordinary. Using reconciliation to push through a partisan agenda? That kind of thing started not long after the reconciliation process was invented. Intra-party horsetrading to get votes? Absolutely routine. Special deals for individual states? Look at any national initiative, you'll always see carve-outs and exceptions to help states with unusual circumstances -- or especially powerful legislators. Backroom negotiations? It goes on daily. There are good policy and procedural reasons for all these things. That's not to say they're immune from abuse; witness the whole Jack Abramoff affair. That's just to say that they're not, in and of themselves, corrupt practices. You really should take a look at any complex piece of legislation and do some research into how it was made. Start by reading the reports that committees issue, they help explain the provenance of every provision.

I have to hand it to you on this one, though. What the Dems did in the Senate to trade their tax plans for the House's wasn't even controversial. And you didn't really prefer the House's healthcare tax proposals to the Senate's, did you?

andrew nelson

@ Jon, who said,

"For more on this topic, please read what my colleague on the news side, David Savage (who *is* an expert on the Supreme Court), wrote today: http://www.latimes.com/news/nation-and-world/la-na-constitutionality27-2010mar27,0,7405718.story He goes into more detail on the meaning of the Raich case and other recent precedents."

There is no point. All of the facts override any lame argument, anyone can muster, that this bill has a chance of being constitutional.

We better hope that the constitutional decision rendered by this Supreme Court (barring any vote by a latino woman who thinks she can make a decision better than a white man), upholds the constitution.

If it doesn't, woe unto the "United" in United States.

Democrat Health Care Act 2010 is Unconstitutional

The Health Care Act 2010 is Unconstitutional. The Government can Not force Citizens to buy Health Insurance because the Citizens are Not 'Property' of the State like 'Roads' are. The loop hole Democrats put in ,is that of IRS enforcement which might prove the allegation made towards Democrats of evading individual constitutional liberties.

The Democrat Civil Right Deception & Freedom VS Health Care Collective Control

The 1964 Rights Act were supported by the Republican party ,which gave people Freedom . The Socialized Health Act 2010 is supported by the Democrat party ,which takes away Freedom (government dictates health issues). It is the Ideals of Individual Rights (fueled by Republican Lincoln) contrasted by the right of Collective Control over society (fueled by Democrat Wilson) which is concerning. Main republicans did Not support the Medicare 1965 where Democrats did who did Not support the Rights Act.

andrew nelson

@Jon, who quotes the Constitution, "All bills for raising revenue shall originate in the House of Representatives; "

The bill that was signed into law, and then reconciled, originated in the Senate. Reid just named it with a "HR" designator.

You might then try to deflect by discussing process, but I will point out that process is every bit as important, here, and we both know that.

If not, we could be getting our next big controversial law, by presidential decree, like Hugo Chavez is doing in Venezuela.

You're trying to tell me you're a proponent of that?

This congress, and this administration is failing to protect and defend the Constitution of the United States. They are evading it.

This congress needs to be kicked out and this President, Impeached.

Brianb2970

Jon, I'm sorry, but the Commerce Clause is the single most-abused part of the Constitution, and using your logic it can be rationalized to force people to do just about anything the government mandarins can dream up.

The reality is that if the states want to require such a "mandate", they're free to do so within the constraints of their own state constitutions, but the Feds simply don't have that power.

You wrote: "Congress is regulating health insurance to make sure everyone has access to affordable health care when they need it. Is requiring everyone to buy insurance an essential part of that regime? Given the 'free rider' problem, I think the answer there is also a clear yes."

And I can make exactly the same argument about gun ownership. Note that in my original comment, I said that such a "mandate" would apply to the "law-abiding", i.e. those legally entitled to own guns... NOT criminals.

Such a gun ownership "mandate" would increase competition among gun manufacturers and vendors, thereby lowering prices for all, and elminate the "free riders" who enjoy the increased security of an "armed society" by making them be part of the solution.

After all, "an armed society is a polite society".

That contributes to, and would be in conformance with, the General Welfare clause.

No; if you're going to make the argument that an insurance "mandate" is a good idea, you have to accept that same argument regarding things you don't like, too.

Keefanda

To follow up my comment March 26, 2010 at 12:59 AM: Does a state "opt out" clause make an unconstitutional law less unconstitutional? Would that state "opt out" clause in this law containing the individual mandate make that mandate constitutional? Suppose some future federal government were to outlaw abortion or women crossing state lines to get abortions? But suppose they gave the states an "opt out clause" for these laws? ----- There is no end to this very slippery slope of violating our right to (economic) privacy using the federal power to tax or regulate interstate commerce as subterfuge. ------ Where is the ACLU? Where are the true civil libertarians?

brock2118

I agree. The next step is to automatically have the IRS order a new GM hybrid vehicle for all earners over $200,000 annually.

Randy L.

Ok, what if Chevrolet produced a vehicle that exceeded all safety and mileage that, if all Americans were to purchase one, it would bring down road deaths by an extere percentage and the mileage was such to have a positive impact on our economy.
Under the interstae commerce, we could be required to buy this vehicle.

So, where does it stop?

And, do you really belive that, once granted this power, it won't be used in this way?

John

Individual Mandate of a product sounds more like Italian Fascism that should be thrown out of the door as unconstituional. No exemptions for anyone not even religious reasons except being homeless and being illegal in theis country along with just visiting and studying. Maybe they should put Obama head on Mussolins body in a photo or video.


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