November 28, 2009

Two Views on Constitutionality of Health Insurance Mandate

Gene Healy writing in the Washington Examiner on the unconstitutionality of the health insurance mandate.
In its "Findings" section, Reid's bill hits all the jurisprudential buzzwords: The individual mandate "substantially affects interstate commerce," and regulates "activity that is commercial and economic in nature." Activity like standing around without health insurance? Apparently so.
Yet, as the Congressional Budget Office noted in a 1994 evaluation of Clintoncare, an individual mandate would be "unprecedented. ... The government has never required people to buy any good or service as a condition of lawful residence in the United States."
Even the Supreme Court ought to recognize the "you exist, therefore you're regulated" rationale as a bridge too far.

The opposite view comes via Ruth Marcus in the Washington Post.
Granted, there is a difference between regulating an activity that an individual chooses to engage in and requiring an individual to purchase a good or service. Granted, too, there is a difference between making automobile insurance compulsory, as a condition of the privilege to drive a car, and making health insurance compulsory, whether an individual wants it or not.

But the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.

I think Marcus oversimplifies this point. If the government can regulate your activity just because you are alive then they can regulate anything and everything. This is far different from the regulation involved in Filburn, which involved the voluntary practice of growing wheat. Being alive is not similarly voluntary. My faith in the Court to strike it down may not be as strong as I would like, but I am heartened by justice Marshall's words in Marbury v. Madison where he wrote, β€˜β€˜the powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.’’ If the Court doesn't strike the mandate down any idea that our government is one of limited powers becomes not only dead, as it is now, but dead and buried.