By Katharine Q. Seelye
The New York Times
Sept. 26, 2009
The requirement that everyone buy health insurance moved a step closer to reality last week — and possibly a step closer to being challenged in court.
Conservatives and libertarians, mostly, have been advancing the theory lately that the individual mandate, in which the government would compel everyone to buy insurance or pay a penalty, is unconstitutional.
“I think an individual mandate will pass, and I think it’s going to be very vulnerable because it exceeds Congress’s constitutional authority,” said David Rivkin, a lawyer who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Mr. Rivkin spelled out his argument in a recent op-ed article in The Wall Street Journal that he co-wrote.
“If you say the government can mandate your behavior as far as this type of insurance goes,” he said, “there will be nothing the government can’t do. They can control every single way in which you dispose of your income.”
But while Mark A. Hall, a professor of law and public health at Wake Forest University, agrees that the matter could end up in court, he says that a legal challenge is “extremely unlikely to succeed.” The power to impose such a mandate is firmly rooted in the Constitution, Mr. Hall said.
Existing case law provides lots of guidance, but “there is not a Supreme Court decision directly on point because this is unprecedented,” said Mr. Hall, who recently expounded his theory on a Seton Hall University Law School blog.
“Other than serving in the military through the draft or paying your taxes,” he said, “it’s hard to think of anything else that the federal government requires you to do just because you’re a citizen.”
Question of Commerce
Both Mr. Hall and Mr. Rivkin point to the commerce clause of the Constitution to support their views.
Mr. Rivkin says a mandate to buy health insurance goes beyond the scope of that clause because Congress cannot regulate activity that is not economic. But Mr. Hall says it clearly falls under the definition of economic activity.
All five committees in the Democratic-led Congress that have taken up a health care plan this year have supported an individual mandate, with the Senate Finance Committee upholding the idea last week. The bills grant exceptions for a variety of reasons, including religious objections and financial hardship; they also exempt American Indians.
Through the nation’s history, the federal government has imposed its will in various ways, of course, whether through military drafts, the advent of the federal income tax or the requirement that working people contribute part of their earnings to Social Security.
Still, a health insurance mandate would be in many ways new for the United States. In 1994, during the debate over the Clinton health care plan, the Congressional Budget Office described an individual mandate as “an unprecedented form of federal action.”
“The government has never required people to buy any good or service as a condition of lawful residence in the United States,” the budget office wrote. “An individual mandate has two features that, in combination, make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would have to be heavily regulated by the federal government.”
Those favoring an overhaul of the health care system say that requiring everyone to carry insurance is essential to making insurance affordable, chiefly by broadening the risk pool to include those who are young and healthy and go without insurance now.
The insurance lobby would not support overhauling the system without the individual mandate. President Obama supports it too, although during the presidential campaign last year he supported a mandate for children only.
Objections have been picking up steam since Mr. Rivkin and others began writing op-ed articles against the idea this summer. And some Republicans, like Senator Charles E. Grassley of Iowa, who supported the idea earlier this year, now oppose it. Opponents say that compelling people to spend part of their income on something they may not want is an unwarranted intrusion by government.
Still others have questioned how the mandate would work and suggested that a government-run insurance plan, including a single-payer system, or a system of tax subsidies could be “more efficient in containing costs and avoid the slippery slope of unconstitutional mandates.”
The Congressional Research Service recently grappled with the legal underpinnings of an individual mandate and concluded that Congress “may have” the power to enact a mandate “as part of its taxing and spending power or its power to regulate interstate commerce.”
Still, it sees potential pitfalls, noting: “Whether such a requirement would be constitutional under the commerce clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.”
If the individual mandate were found to be unconstitutional, the health care overhaul as it is now structured by many committees in Congress would almost certainly collapse.