Is health-care reform constitutional? If so, can the federal government make you buy a Chevy?

[Karmadillo]

http://www.washingtonpost.com/wp-dyn/content/article/2010/03/19/AR2010031901470.html

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The individual mandate.

Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power "to regulate commerce . . . among the several states." Historically, insurance contracts were not considered commerce, which referred to trade and carriage of merchandise. That's why insurance has traditionally been regulated by states. But the Supreme Court has long allowed Congress to regulate and prohibit all sorts of "economic" activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that's how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

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Of course, there is one additional way for states to win a fight about the constitutionality of health-care legislation: Make it unconstitutional. Article V of the Constitution gives state legislatures the power to require Congress to convene a convention to propose an amendment to the Constitution. If two-thirds of state legislatures demand an amendment barring the federal regulation of health insurance or an individual mandate, Congress would be constitutionally bound to hold a convention. Something like this happened in 1933 when Congress proposed and two-thirds of the states ratified the 21st Amendment, removing from the Constitution the federal power to prohibit the manufacture, sale and transportation of alcohol. But the very threat of an amendment convention would probably induce Congress to repeal the bill.

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although the first three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won't be five votes to thwart the popular will to enact comprehensive health insurance reform.

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[onenote]

1. the government can tax everyone

and then give those that buy a hybrid car a tax credit.

was that unconstitutional too?

[Karmadillo]

3. The sixteenth amendment lets them tax everyone. The tax

credit doesn't make anyone buy a hybrid car, so I guess I don't see it as relevant to the constitutionality of the insurance mandate.

[KILL THE WISE ONE]

2. okay then, have your ATM card ready when you go to the ER

[Karmadillo]

5. Would the unconstitutionality of the insurance mandate automatically invalidate laws

requiring emergency rooms to treat everyone in need? I don't see how it would.

[KILL THE WISE ONE]

8. the mandate is not unconstitutional

the mandate to buy insurance is a law or soon to be, but so is the requirement for the ER to treat you is also just a law.

[Fumesucker]

9. There are only nine peole in the US capable of determining whether a given law is Constitutional..

Those people belong to the Supreme Court.

[Karmadillo]

12. Sorry if I wasn't clear. I meant that if the mandate were found unconstitutional (unlikely given the

right wing Supreme Court) it wouldn't invalidate the laws requiring emergency rooms to treat those in need (which is what you seemed to be saying). I guess one could challenge the constitutionality of the emergency room laws, but I don't know what grounds one would cite.

[OmmmSweetOmmm]

4. Another question. Can the mandate be challenged prior to it going inta effect?

[Karmadillo]

6. I guess we need a lawyer. I thought the ripeness doctrine said you have to have

actual or imminent harm. I don't know at what point the mandate would create harm sufficient to make a justiciable controversy.

[OmmmSweetOmmm]

7. I would think once it's enforced in 2014.

[girl gone mad]

10. Pretty well written article.

I agree that the mandates are unconstitutional, and I also agree that our current Court would rule in favor of corporate mandates. This is a dangerous and shocking precedent, and one I believe most of us will live to regret in reasonable time.

[yodoobo]

11. no one is BEING FORCED to buy insurnance

those who don't will simply pay much more in taxes.