Thursday, April 1, 2010

Is the individual mandate to purchase health insurance constitutional?

Here is an interesting quote from no other than Supreme Court Justice Antonin Scalia relevant to the issue of the individual mandate.

In 2005’s Gonzales v. Raich, the Supreme Court upheld federal restrictions on home-grown marijuana in California and even conservative justice Anthony M. Kennedy “joined a 6-3 ruling that said Congress could regulate marijuana that was neither bought nor sold on the market but rather grown at home legally for sick patients.”

Scalia wrote the following in his concurrence with this decision:

The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.

It would be hard to argue that the effort to control healthcare costs that represent such a large part of the economy is not an effort toward "a legitimate end under the commerce power."

So, is it possible that Scalia of all people might rule that the individual mandate is constitutional? Nah….but maybe. Wouldn't that come as a surprise to Repubs?

Here is another interesting argument for the individual mandate from Jon Healey writing in the LATimes. He says:

The courts have already held that health insurance is interstate commerce subject to federal regulation. The healthcare reform law would build on existing rules in an effort to extend insurance to more people, in part by prohibiting insurers from rescinding policies or denying coverage to people with preexisting conditions. But that regulatory regime would be undercut by "free riders" -- people who wait to obtain insurance until they need expensive treatment. Another aim of the new insurance rules is to slow the growth of costs. But people who don't obtain insurance can undermine that effort by failing to obtain preventative care and relying on the most expensive venue for treatment: the hospital emergency room.

In sum, the bill regulates a form of interstate commerce, but that regulation would be ineffective without an individual mandate.

Healey then goes on to discuss that argument that many conservatives make that if the government can make me buy health insurance then why couldn’t it make me buy other things, like guns or a particular brand of car.

It's hard to make a similar case for a mandate to buy guns or GM cars. Start with guns. Assume the overall regulatory regime is designed to promote public safety, as brianb2970 suggests. Would it be undermined if some people chose not to own guns? That would be tough to prove.

The federal government regulates car manufacturing to protect public safety, improve air quality and reduce energy consumption. Would that regulation be undermined without a requirement that Americans buy Chevys (or any other brand)? Of course not.

Here is another interesting argument from Richard N. Fogoros, a former professor of medicine:

[ The section of the health reform bill dealing with the individual mandate] “Subtitle F - Shared Responsibility For Health Care,” is carefully designed to defeat any constitutional challenge.

The meat of Subtitle F is contained in one sentence (Section 5000A), to wit: “An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” This sentence takes up about 20% of one page. Most of the remaining 42.8 pages of Subtitle F creates a protective shell against constitutional challenge. It does this in two ways.

The first protection against a constitutional challenge is the more obvious. In fact, before we ever get to the individual mandate itself, we are treated to five pages that detail the multitude of ways in which “individual responsibility” in healthcare (i.e., the mandate to buy insurance) “is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” In other words, the individual mandate is wrapped by a formal “finding of Congress” that this mandate is subject to the Commerce Clause of the U.S. Constitution….

He goes on:

But this first protection against a constitutional challenge only covers the first five of the 43 pages of Subtitle F. Most of the remaining 38 pages establishes the second protection. This one is more subtle than the first, but, DrRich thinks, it will be the more difficult one to overcome.

That remaining portion of Subtitle F deals largely with the penalties to which individuals would be subject if they failed to comply with the mandate to buy health insurance. It describes in detail how the mandate is to be complied with, how compliance is to be documented, and how the mandate is to be enforced. This long section of Subtitle F reads like tax law, like IRS code. As well it should. For, what it establishes is that the individual mandate is actually a tax, that is treated like any other tax in its documentation, collection, and enforcement, and indeed, that the IRS will be running the whole show.

Interesting stuff.

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