Is It Unconstitutional to Mandate Health Insurance?

That is one of the questions being debated on Politico's "The Arena."

I am linking to two noteworthy posts. The first is by Georgetown professor Randy Barnett.

OK, let's be old fashioned and start with what the Constitution says. After the Preamble, the very first sentence of the Constitution says "All legislative powers *herein granted* shall be vested in a Congress of the United States. . . ." And again the Necessary and Proper Clause gives Congress the power "To make all laws which shall be necessary and proper for carrying into execution *the foregoing powers*, and all other powers *vested by this Constitution* in the government of the United States, or in any department or officer thereof." The Tenth Amendment is not required to see that Congressional power must be found somewhere in the document.("Tenthers"? What's next? "Firsters"? "Necessary and Proper Clausers"?Enough with the derogatory labels, already.) So where in the document is the power to mandate that individuals buy health insurance?

The power "to regulate commerce . . . . among the several states"? This clause was designed to deprive states of their powers under the Articles to erect trade barriers to commerce among the several states. It accomplished this by giving Congress the exclusive power over interstate sales and transport of goods (subject to the requirement that its regulations be both "necessary and proper"). It did not reach activities that were neither commerce, nor interstate. The business of providing health insurance is now an entirely intrastate activity.

The "spending power"? There is no such enumerated power. There is only the enumerated power to tax. Laws spending tax revenues are authorized, again, if they are "necessary and proper for carrying into execution *the foregoing powers*." So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?

But following the text of the Constitution is so Eighteenth Century.

The other is by Cato's Vice President for Legal Affairs Roger Pilon.

Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally.

Whole treatises could be, and have been, written on the subject, so I’ll make just a few quick points here. The Constitution was written and ratified not simply to authorize and institute but to limit government as well. Indeed, that’s the main reason for having “a constitution” – a compact between the people and the governors they authorize to act under it, who take an oath to abide by its provisions. Congress has only 18 enumerated powers or ends. Moreover, the exercise of those powers – and those of the states after the Civil War Amendments were ratified – are further limited by our rights, both enumerated and unenumerated. Under our Constitution, most of life was meant to be lived in the private sector. Only a few things – like law enforcement and national defense – were “socialized."

There is plenty of back and forth so it will be an interesting debate to follow. The issue was prompted by an article in today's Wall Street Journal.

UPDATE: Much more about this at Volokh.