health care mandates

  • November 9, 2009
    Guest Post

    By Helen Wong, former president of the ACS student chapter at Georgetown Law

    As the debate over health care reform continues, the question of whether an individual mandate to purchase health insurance is constitutional has been termed "the elephant in the room" by conservative pundits across the country. If so, this is definitely an elephant that has gotten significant attention. Bush administration attorneys, David Rivkin and Lee Casey, wrote not one, but two editorials in The Washington Post and The Wall Street Journal arguing that a health insurance mandate would exceed the power granted to Congress by the Constitution.

    Opponents of the health care reform point to two main arguments for why such a mandate would be unconstitutional. First, they argue that Congress lacks constitutional authority to compel people to purchase health insurance. Second, they maintain that Congress lacks the power to levy a tax against those who do not purchase health insurance or that such a tax would be considered an "arbitrary and capricious taking under the Fifth Amendment."

    But the opponents are wrong on both counts. Congress does have authority to pass a health insurance mandate under the Commerce Clause enumerated under Article 1, Section 8, of the Constitution. Since the 1930s, the Supreme Court has interpreted the Commerce Clause to mean that Congress has the authority to regulate activities that have a substantial effect on interstate commerce. "Substantial effect" can be found on individual decisions that, in the aggregate, would affect interstate commerce. In Wickard v. Filburn, Filburn had violated wheat production quotas because he was growing extra wheat for personal consumption. The Court found that his actions, though minimal, would affect interstate commerce because it would reduce the amount of wheat he would need to purchase on the open market. More recently in Gonzales v. Raich, the Supreme Court found that "Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce." 

  • November 2, 2009
    Some opponents of health care reform, especially the mandate that all citizens buy health care insurance, are inaccurately claiming Congress is on the verge subverting the rights of states, says constitutional scholar and law professor Robert A. Schapiro.

    In a column for The Atlanta Journal-Constitution, Schapiro, professor of law at Emory University School of Law, explains that supporters of the health care provisions are actually the "true standard bearers of federalism," and the plans being considered in Congress "build on the interaction of state and federal power that is central to federalism."

    Schapiro continues:

    Constitutional doctrine clearly gives Congress the authority to decide whether to enact the mandate. Congress has the power to regulate interstate commerce, which includes buying and selling insurance. In the Raich [Gonzales v. Raich] case in 2005, the U.S. Supreme Court clarified the scope of the commerce power and reaffirmed the core principle that dissident states cannot thwart national policy.

    Raich concerned a California program that legalized the use of marijuana for medical purposes. The California plan clashed with a federal law that criminalized private possession. In Raich, the court upheld the congressional ban by a vote of 6-3.

    Even Justice Antonin Scalia, no fan of expansive claims of federal power, voted to affirm Congress' authority. Justice Scalia explained, ‘Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.'

    See Schapiro's entire article here. Also for additional analysis of the constitutionality of health care reform see Professor Erwin Chemerinsky's recent columns here and here.