In an op-ed for the Boston Globe, Charles Fried, Harvard Law School Professor and former Solicitor General under President Ronald Reagan, writes why the new health care law’s individual mandate, which requires citizens to obtain health insurance to avoid a $700 penalty, is constitutional.
Fried suggests that constitutional objections to the new law are “far-fetched,” drawing comparisons between the new law and the Supreme Court’s recent ruling in United States v. Comstock, which affirmed Congress’ power to allow the indefinite detention of child pornographers under the authority of the Constitution’s commerce clause. That same clause, Fried explains, reaffirms the constitutional integrity of the individual mandate:
For the health regulation to work…it is “necessary and proper’’ — the clause explicitly in play in Comstock — to nudge (with the $700 penalty) the young and healthy to enter the insurance pool, and not to wait until they are old and infirm. Insurance just won’t work if you could wait until your house is on fire to buy it. But, say the objectors, this is not penalizing someone for doing something harmful; it’s penalizing him for not doing something, and that’s somehow different.
It is not. Congress has the power to enact the regulatory scheme and to design it in a way that is “necessary and proper’’ to its good functioning, and that means sweeping in the unwilling.
Fried also dismisses the objection that the new law “unconstitutionally imposes financial and administrative burdens on unwilling states,” noting that the statute provides an exemption to “unwilling states.”
Ilya Somin at The Volokh Conspiracy countered Fried’s op-ed, charging that Fried is “mistaken both in his interpretation of Comstock and in his broader argument.” Somin argues that the individual mandate is not narrow in scope, as the ruling in Comstock stated, and dismisses health insurance as not falling under the designation of “interstate commerce.”
In an ACS Issue Brief, Simon Lazarus examines the constitutionality of the individual mandate, explaining why there is a strong constitutional basis for it. To download that Brief, click here.