Healthcare Mandate vs. U.S. Constitution

[davidswanson]

Does the United States Constitution allow Congress to force people to purchase a product (health insurance) from a private corporation, and fine them or tax them if they refuse? The answer is a matter of debate, but there is little dispute that such an act of Congress would be unprecedented.

Sheldon Laskin, an Adjunct Professor at the University of Baltimore Law School who has argued that the Constitution forbids such a move, describes the new and dangerous can of worms it would open up:

"If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it. The auto industry is collapsing? Forget Cash for Clunkers, just order Americans to buy cars or tax them if they don't. Obesity crisis? Order Americans to join health clubs, or tax them if they don't. If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses."

Outlandish? Consider this: Many Supreme Court observers expect a ruling, quite possibly on January 12, 2010, in the case of Citizens United vs. Federal Elections Commission that would lift all limits on corporate funding of elections, meaning that national and international corporations could swamp the election system with so much money that any influence from actual citizens would be utterly negated. If you were a corporation and you owned the legislature, and laws were being passed requiring people to purchase products, and you owed it to your shareholders to maximize profits, what would you feel compelled to do? Exactly.

The U.S. Department of Justice recently claimed that, for purposes of keeping illegal government-funded activities secret from the public and the courts, telecommunications corporations were effectively part of the executive branch of the government. Might the same argument not be made, in the none too distant future, about "health" corporations funded by government mandate? If the federal government can force me to give money to major campaign funders, where does the government stop and the private business begin?

Of course most of those arguing that the government cannot do this are libertarians and/or opponents of the Democratic Party, since so many on the left who ought to be raising these concerns have sold their souls to that party and this is a Democratic proposal. But the argument against an individual health insurance mandate is not an argument against a civilized healthcare system. The government can tax the public and/or corporations and pay for healthcare, even with those payments going to private businesses, without running up against the same Constitutional hurdles or the same concerns from observers wary of creeping corporatism.

The Constitution provides Congress with certain enumerated powers in Article I and explicitly leaves all other powers to the states or the people in the 10th Amendment. So, the constitutional question, for those who still care whether laws are constitutional, is whether the power to force you to buy a horrible product you do not want from a disreputable monopolistic corporation that pays regular bribes to your elected representatives in the form of campaign "contributions" is specifically listed anywhere in Article I.

Article I gives Congress the power to "lay and collect taxes" as well as the power to "regulate commerce … among the several states." Interpretations of these clauses have varied. Predictions as to where the current Supreme Court would come down vary. I find Laskin's arguments the most persuasive. Here's a lengthy two-sided debate and here are the cherry-picked opinions offered by Senator Max Baucus (D., Blue Cross Blue Shield).

Is mandated health insurance commerce? It is not, like all other commerce, something that can be resold. It is not, like all other commerce, optional, if you force everyone to purchase it.

Is it interstate? That concept has perhaps been loosened enough to cover anything that counts as commerce, and the new legislation may allow the sale of health insurance across state lines despite candidate Obama's argument that doing so would create a race to the bottom in quality and accountability. But you can't have interstate commerce with something that isn't commerce at all.

Is mandated health insurance a tax? President Obama swears it isn't. He calls its enforcement mechanism a "fine." But perhaps that's for public consumption, whereas courts will be told it's a tax. Is it? How can it be, when it is not a payment to the government? If it is, there is the problem that Article I requires that "imposts and excises shall be uniform throughout the United States" which this would not be.

But the Constitution forbids the ongoing warrantless spying programs. The Constitution does not allow presidents to launch wars. In the Constitution everyone has the right to habeas corpus. We have cases in which the Supreme Court has ruled our general public practices unconstitutional, and yet they blissfully proceed. Ultimately, the question is whether we will stand for fascistic policies or fascistic interpretations of the Constitution. Personally, I will not stand for either.

[pocoloco]

1. "Personally, I will not stand for either."

Just in case that happens, what are you gonna do?



Inquiring minds sure would like to know.

[sabrina 1]

6. Refuse to buy a premium from a private corporation

The first person to do that, and they will do it, will have standing to take it to court. All the way to the SC if necessary. Already people are planning to do so. Five states have already introduced legislation nullifying any law that requires them to purchase health care.

Looking around the blogosphere, the most unpopular part of this bill is the mandates, especially with no choice, like a public option. If they had included a PO, then no one would have a case to make that they are being forced to buy a product from a private corporation.

The fines have become a tax. Making the IRS basically a collection agency for private insurance. As someone said yesterday, to many people this is reminiscent of the Mafia forcing people to pay protection money otherwise they will bring in their big collectors.

Another problem with this is that those who buy in order to avoid this punitive tax, will buy the cheapest policy they can afford. Many of those people will probably be afraid to use their coverage as the co-pays will be so high they will not be able to afford them. Iow, for many people they will have to weigh the cost of complying against not complying. Check out Mass to see how it is working there. Already, in just three years, the 'fines' have nearly tripled. And still, hundreds of thousands are not covered.

I am also not sure that the government can use the IRS as a collection agency for a private business.

Just include a public option and this problem would go away. But if they don't, there will be thousands of lawsuits with organized groups all over the country, challenging it.

They could have done it in compliance with the Constitution by extending Medicare to all. Then, the government could have deducted a medical tax, as they do for SS from people's salaries. That they have the right to do. But taxes used as a punishment for not buying a product is going to make a lot of people very angry. It has already.

[Oregone]

2. Is "regulating commerce" the same as forcing an individual to enter a marketplace and engage in it?

In this case, the commercial activity does not exist to regulate until the government forces it to first take place.

[davidswanson]

4. Prezactly

And with re to what am I gonna do:
THIS
http://davidswanson.org/node/2366

[cbdo2007]

46. It's just regulating the consumer rather than regulating the business.

At least both the Dems and Repubes can agree on one thing - business will NOT be regulated. While the Repubes stood by then and just ignored the problem and any possible solutions, the Dems acted (at least?) by then doing the only thing they could - regulating consumers to force them to buy Health Insurance. By doing this, they silence all the calls from special interest groups (i.e. Americans) who will no longer be able to say people are dying or not getting treated due to lack of Health Insurance.

It brings up a shitload of new problems, not to mention a scary precedent of forcing consumers to buy something that is priced too high for the services rendered, but hey, we voted these fools into office. I can only hope Obama will wisen some of this up when it hits his desk or else he's probably not going to be around in 2012 and the new Repube president will override the whole bill before it (conveniently) even starts working.

[Odin2005]

3. The mandate is SOOOO wrong on so many levels.

Ethically, Ideologically, Politically, and Constitutionally. It's despicable and totalitarian.

[Ozymanithrax]

5. It is called the general welfare clause...Article 1 Section 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

It is the source of authority for Medicare, Medicaid, Social Security, and every other progressive legislation that is not mentioned as an enumerated power of congress.

From what I read, it is going to be asserted that the General Welfare clause does not allow this by right wing Republicans. If the court finds they are correct, it will be their wet dream come to life, because then they can dismantle Medicare, Medicaid, Social Security, Welfare, and ever other progressive legislation.

[Oregone]

7. How does forcing someone to buy a private product provide for the general Welfare of US?

Think about it...and it doesn't specify they can even mandate private purchases there on an individual level, but rather "collect Taxes, Duties, Imposts and Excises".

This is not any right-wing dream at all.

[Ozymanithrax]

14. That is the problem right wing pundits have called out in that clause...

Amendment ten says:

Amendment 10 - Powers of the States and People. Ratified 12/15/1791. Note

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Conservatives and Republicans have, for years, called for the abolition of Social Security, Medicare, Medicaid, welfare, and other progressive legislation because they are not enumerated powers under Article I Section 8, and therefore are forbidden to congress. These programs are based under authority in the General Welfare Clause because it seems to allow the Congress to do anything, and fund anything, that is in the General Welfare of the United States. In this case, providing near Universal Health Coverage, even if it is with a mandate, is in the General Welfare of the U.S. (This is the same source of power that would be used to initiate single payer of a public option).

It has been the Republican wet dream to limit the Congresses power to use the General Welfare clause. If they can limit it's power, then every progressive program that takes its authority from the General Welfare Clause will be open to attack. General Welfare and common defense has been considered an item separate from "collect Taxes, Duties, Imposts and Excises." When ever congress wanted to create a program that was not enumerated or related to one of their powers, it falls under the General Welfare clause. If Republicans take it down, then every program they hate that takes its power from General Welfare will be in their sites.

[JDPriestly]

10. Medicare, Medicaid and Social Security are merely exercises of

Congress's ability to collect taxes and pay debts. Social Security is collected in the form of a tax on your income. Medicaid is paid directly from taxes.

The government could collect a tax to pay for health care and then pay the health care debts as they arise out of that. What the government cannot do is order you to pay a sum of money for a product offered by a private entity. The government does not have that authority under the Constitution.

Remember, the health insurance mandate money will not be collected as a tax, duty or impost by the government. You will make the payments directly to your insurance corporation.

I don't think that part of the bill will fly at all. But I could be wrong. I am not an expert on this. I just studied basic constitutional law and did research in some areas of it but not this one.

[L0oniX]

17. You would think Obama knows about this since he called himself a constitutional law professor...

but then maybe he conveniently forgot.

[bvar22]

24. He forgot he cvampaigned on the Public Option...

..so you have a point.

[salib]

18. Remember, it is a "fine" or "tax"

To encourage the behavior (purchase healthcare insurance), not an "order". There are no penalties beyond the tax.

Of course, taxes have penalties, including jail, associated with them....

[Xicano]

45. Jury Nullification

If someone was selected on a jury panel for someone facing jail charges associated with refusing to pay for this un-American law. They should remember one of the concepts behind a jury of peers is to counter check unreasonable and unlawful laws. This is a historical part of our jury and a right of the jury.

I am just saying.

[boston bean]

11. Please explain, how would they be able to dismantle medicare, medicaid

social security and welfare?

Those programs are not run by private corporations.

They are uniform taxes levied across the board which the government provides for the general welfare.

I see it just the opposite. It strengthens the argument for a single payer hc system.

[Ozymanithrax]

15. Conservatives point out that they do not come from enumerate powers...

Providing health care or pensions for old age are mentioned no where in the Constitution. Because those powers are not given to Congress they are reserved by the states. So Congress rightly pointed out that these Programs provide for the General Welfare of the people of the U.S. It has withstood all challenges up to now because the clause is vaguely written. As long as Congress can argue that the program provides for the general welfare, it is allowed, and providing health care to the American people is imprtant to the people's general welfare.

Should the SCOTUS rule in favor of the Republicans and decide that the bill does not fall under the General Welfare clause, then all other programs that hold their authority from that clause come into question.

Personally, I think Republicans will loose. Case law that I've seen in my research is not on their side. But the SCOTUS can decide that previous case law was wrong, they can weaken the General Welfare clause and limit its applicability. A 5 to 4 split in this case would put all other programs in danger and start a series of lawsuits that will last for years.

[Jamastiene]

35. That is all the more reason they should drop the mandate.

It is putting Social Security, Medicaid, Medicare at risk.

[Motown_Johnny]

25. .... and PROVIDE for the common Defense and general Welfare

not to force individuals to provide it for themselves.


Did you notice how that all comes after the power to collect taxes, duties, imposts and excises to pay the debts......?


To me it implies that the taxes, duties, imposts and excises are there to allow the government to prove for the common defense and general welfare....

So single payer it is!

[eridani]

36. That is about a tax paid to the government for public services, like single payer

That is different from forcing you to patronize a private business.

[EndElectoral]

57. Problem with Gen. Welfare clause, is it provides profits in this case for private industry

[JDPriestly]

8. Single payer would be constitutional.

Congress could work single payer under its right to tax people and then allocate the money. But this mandate to buy private insurance doesn't look constitutional to me. Surely, Congress asked better lawyers than I to review its constitutionality, so I could well be wrong.

As far as I know, a person can be jailed for contempt for violating a court order to pay child support (or some other court order), but that is about the only payment that a person can be forced to make or face a jail sentence. Perhaps if you defy a court order to pay a sanction to a court, you can face a jail sentence.

I think the plan here is to swat your hand with a fine if you don't buy the insurance. I suspect a lot of people will choose that.

I favor everyone buying into health insurance.

One of the reasons I favor the single payer proposal is that it can be done so as to avoid a constitutional dither. I would have a single payer plan with a private option rather than a mandate to buy private insurance with a public option. Same thing, but one is probably constitutional and the other not.

[TiberiusGracchus]

21. Seeing as how Medicare has been unchallenged for over four decades, yeah

[suffragette]

44. Yet another reason why single payer is the solution

The method to provide it has already been established by Medicare, Medicaid, etc.

And I agree with you on the single payer with private option over mandated private insurance with public option.

It feels like we came to a crossroads and have started down the wrong path.

[20score]

9. Fantastic! K&R

I've posted this on Facebook, also.

[pleah]

37. So did I. n/t

[Little Star]

12. I wonder what the Republicans will force us to buy once

this slippery slope is taken and they have their turn up to bat? They will some day have their turn up to bat again and will thank Dems for opening this door for them.

[Demeter]

22. Illegal Wars, Torture, and Global Pollution Leading to Climate Changes, I Expect

[COLGATE4]

13. I'm not sure

that one opinion by an Adjunct professor at a smaller law school is enough to start debating about.

[Mari333]

16. knr

[edc]

19. Car insurance?

The analogy of this compulsory mandate being equal to buying car insurance is false. No one is compelled to own a car or to drive one. They must be insured only if they drive one. When I heard Obama make this argument I knew he was making a false claim and so did he. Yet, this entire house of health insurance cards rests on the compulsory mandate. Without it, the insurance companies loose the crown jewel of their scheme and any precedent for further such criminal activity is shattered.

[Motown_Johnny]

23. Wrong, you only need car insurance if you have a car., this mandate applies to everyone

you can't choose to not have it the way you can choose to not have a car and car insurance

[Kansas Wyatt]

27. The difference is between liability and full coverage.

There are NO laws requiring people to purchase full coverage auto insurance. Only liability to protect other drivers from harm you may cause them. A loan company forcing you to purchase full coverage is not a law, only a requirement to get and keep the loan.

The health insurance mandate would be like requiring people to purchase full coverage auto insurance, if they want to compare it to auto insurance. And, like you said, no one is compelled to drive a car.

[PVnRT]

39. State governments require you to have car insurance, not federal

And as others have pointed out, you aren't required to own a car.

[nxylas]

56. No, but try getting around without one

I can't drive due to a disability, and if you live in the USA outside of the biggest cities, it's damn near impossible.

[TorchTheWitch]

60. No, they must insure the CAR

The insurance follows the ownership of the car, not who drives it. Any car driver is not mandated to purchase car insurance for themselves, any car driver who OWNS a car must purchase insurance for the CAR. You can own a car and NEVER drive it and not even be licensed to drive at all but the CAR must be insured. Likewise, you can have a driver's license and drive cars that are owned by others and never have to purchase the insurance for those cars. Mandated STATE liability only insurance is for the ownership of a car, not the driver(s) of the car.

Not in the least bit comparable to federally mandated health insurance for every citizen that owns a human body (ie - ALL citizens).

[Bette Noir]

20. One word:

Rollerball.

[tritsofme]

26. See Wickard v. Filburn

Congress clearly has the authority to mandate the purchase of insurance under the commerce clause.

If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses."

Only as long as Americans allow those politicians to serve them. We have national elections every two years.

[twitomy]

31. So then the govt can mandate we all buy new cars?

Same thing IMHO. No freakin way this is constitutional.

The Wickard case was the govt being allowed to regulate an existing commerce act of Wickard growing wheat. No where does the constitution say the govt has the power to force us to make an act of commerce. The govt couldnt force Wickard to grow wheat, but it could regulate his voluntary wheat growing activity. Thats the difference, and thats what is being challenged here.

[cherokeeprogressive]

51. The government could concievably force citizens to buy not just cars, but GM and Chrysler built cars

Right?

[ramapo]

28. Passing the mandate will mean the end of the Democrats

I am amazed at how quickly and easily the Democrats have gone from a position of generational strength and a mandate for change to being on the brink of self-destruction.

I am fairly confident that the Senate bill will immediately become a lighting rod of protest from the right, the left, and many in between.

I don't know anybody personally that isn't pissed off at the idea of a mandate. This is across the spectrum, right to left.

The constitutional questions raised are fascinating and I wonder how Obama, once a constitutional type himself, doesn't have red alarms going off in his head.

If the Supremes do strike down the limits on corporate financing then I think nothing much will matter much. We've seen the power of the corporation in getting their way during this nearly year long nightmare. Just imagine things when the politicians can be paid off in broad daylight.

[Goldstein1984]

30. I agree. A mandate isn't very democratic

2010 will be ugly, and I can see the mandate being often mentioned in exit polls.

[girl gone mad]

34. I was thinking about this earlier:

"I am amazed at how quickly and easily the Democrats have gone from a position of generational strength and a mandate for change to being on the brink of self-destruction."

Democrats had it all. They could have had 30 years of power, but they are already letting it slip away, and for what? No amount of campaign cash can be worth this clusterfuck.

[WillYourVoteBCounted]

29. You mean rob from the poor (us) to give to the rich (insurance co/campaign donors)?

I think thats what you mean.

[Flatulo]

32. There has been at least one legal challenge to Massachusetts' mandate...

http://healthplans.hcpro.com/content/229699/topic/WS_HLM2_HEP/Massachusetts-wins-legal-challenge-to-individual-mandate.html

Unfortunately, a Superior court judge ruled in the state's favor.

Amazingly, I find myself on the same side of this issue as Glen Beck. The implications of forcing a free individual to buy a product from an entity with whom he or she does not wish to comport has dire consequences.

[Laelth]

33. k&r for exposure. This is important. n/t

Kill the bill.

Forcing people to buy insurance is no more the answer to a failed health care system than forcing people to buy houses is the solution to homelessness.

:dem:

-Laelth

[pleah]

38. K&R

[Echo In Light]

40. K&R

[tomp]

41. ironic, this mandate coming from the constitutional expert-in-chief. nt

[COLGATE4]

42. For all the breast-beating and posturing

i.e. "I for one will not stand for it", it is I believe totally unrealistic to believe that anything in this mandate will be found to be unconstitutional. Supreme Court jurisprudence, beginning with the New Deal has almost universally accepted that affecting Interstate Commerce is such a broad concept that almost anything can be found to be within its scope. I believe that this will also be the case here. It may be an interesting question for a Law School exam in Con Law II, but in practical terms it's a done deal. Better to focus energies on modifying/improving the bill rather than satisfying but ultimately pointless gestures of defiance against it.

[grahamhgreen]

43. The house bill, at least, refers to it as a 'tax', however, as it provides not benefit, it is not.

[Beartracks]

47. Very well writ. Great points throughout.

>"If you were a corporation and you owned the legislature, and laws were being passed requiring people to purchase products, and you owed it to your shareholders to maximize profits, what would you feel compelled to do? Exactly."

>"The government can tax the public and/or corporations and pay for healthcare, even with those payments going to private businesses, without running up against the same Constitutional hurdles or the same concerns from observers wary of creeping corporatism."

[booley]

48. I admit the constitutional argument isn't the first one I'd use

Because the whole idea of a mandate is damn dumb to begin with.

And a lot of those reasons were eloquently laid out... BY OBAMA on the campaign trail!

A stupendously bad idea does not become not bad just because one may be able to swing it on a technicality in the constitution.

I for one won't pay it. I couldn't even if I wanted too.

(and don't give me some BS story about subsidies. Anybody who's ben paying attention knows how that will work out.)

[cascadiance]

49. If our health isn't a right, then why don't hospital ER rooms let those who cannot pay DIE?

I'm certainly not advocating that, but the whole point of rules that hospital ER rooms must take care of people seriously ill or injured whether they are able to pay or not, is legal evidence that our system regards the right to life and health as a *RIGHT*.

And the problem that stems from the cost of this forced treatment being the sole point of enforcement is what is the fundamental flaw of the private insurance model, since it inflates costs heavily not only to pay for those who can't pay for this treatment, but because the costs are also so much more when there is no preventative care given those persons that could have been far less costly too, had they been treated before their conditions were serious.

The solution was to have mandated buying into an insurance plan, so that there would be far less people being treated that don't have some means of paying the hospital for this care (and presumably bringing down costs). But if we don't have a public option to go with it, then what keeps the costs of mandated health insurance from soaring to the moon?

We should use the mandate of us giving health care to people in emergency rooms as a legal basis for health care coverage being a right for people to have, whether or not they are able to pay for it or not. It shouldn't be a system for profit to keep our people healthy, as long as their isn't a real supply/demand equation that govern most successful capitalistic markets. When you have demand from everyone in their life for health care, and it is a sustained demand in some cases for chronic conditions, capitalism really doesn't work to address this part of our lives.

Auto insurance works, since it is a means to prevent loss in the case of a severe accident, but in these instances, it is a one time incident that isn't inherently chronic after that. If a person is a bad driver that might make it "chronic", there are ways that person can make themselves better drivers, or use alternatives like having someone else drive or use public transportation. Those with chronic health conditions don't have that option. They are STUCK! That's why we shouldn't be allowing for-profit industries to exploit their necessity. Government MUST step in to come up with ways to pay for those helping these people (doctors, etc.), but not in a profiteering way.

If the Republicans and the Corporate Democrats deny that there is any right to health care, then they should be forced to ask their Christian selves if they would enforce that philosophy in the emergency room and let those that cannot pay for health care die instead of *giving* them health care in those instances if they don't have a *right* to that care. If they don't want to let them die, then ask them whose job is it to pay for their care then and how that jives with their theory that health care isn't a right?

[cherokeeprogressive]

50. Does the Nelson/Nebraska giveaway violate the Equal Protection Clause?

Can the citizens of one state be rewarded for an action, while the citizens of other states are not?

[H2O Man]

52. Thank you.

Definitely recommended!

[earth mom]

53. The mandate is unconstitutional, but given the Supreme Court line up, the people may lose.

This country has become so corrupt it's unbelievable.

[rhett o rick]

54. The mandate will be political sucide for Democrats on all levels.

The right will argue that it is big government at it's worse. The left will have a tough time supporting.

[winyanstaz]

55. K &R.....well done..thank you

[sendero]

58. Regardless of any coming SCOTUS decision..

... our government is already effectively controlled by corporations and you don't have to look past the bankster bailouts or the pending health care "reform" to see that.

Could it get worse? Maybe, but if it does there is certainly a point at which Americans say enough IMHO.

[Land Shark]

59. It's a tax with a pass-through to the "third party" insurance company (basic: INS Co Taxes public)

In economic terms, when govts get low on money, they start handing out rights, privileges, intellectual property and monopolies as substitutes for direct cash pork. The insurance company monopoly is pork barrel politics at its height.