The debate over health care reform has taken an unexpected turn; to the United States Constitution. Those who oppose health care reform are increasingly arguing that it would be unconstitutional to require people to purchase health insurance. This is a major feature of the proposals pending before congress. In recent days, I have found myself debating on Fox News, in blogs, and on radio stations about the constitutionality of health care reform.
But on closer examination, it is clear that there is no basis for these objections. The proposals may be desirable or not, but they are clearly constitutional. As with any act of congress, there are two potential constitutional issues: Does the law fit within the scope of congress’ powers? If so, does it violate rights protected by the constitution?
As for the former, Article I, section 8 of the constitution authorizes congress to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate economic activities that taken cumulatively have a substantial effect on interstate commerce. For example, a few years ago, the Supreme Court held that congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for their own personal medicinal use because marijuana often is bought and sold in interstate commerce. Decades earlier, the Supreme Court ruled that congress could regulate the amount of wheat that farmers grow for their own home consumption.
The relationship between health care coverage and the national economy is even stronger and more readily apparent. In 2007, health care expenditures amounted to $2.2 trillion, or $7,421 per person, and accounted for 16.2% of the gross domestic product. Some have suggested that people who decline to purchase governmentmandated insurance would not be engaging in commercial activity, so there is no interstate commerce. This argument is flawed because the Supreme Court never has said that the commerce power is limited to regulating those who are engaged in commercial activity.
Quite the contrary, the court has said that congress can use its commerce power to forbid hotels and restaurants from discriminating based on race, even though their conduct was refusing to engage in commercial activity. Likewise, the court has said that congress can regulate the growing of marijuana for personal medicinal use, even if the person being punished never engaged in any commercial activity.
Under an unbroken line of precedents stretching back over 70 years, congress has the power to regulate activities that taken cumulatively have a substantial effect on interstate commerce. Those not purchasing health insurance unquestionably have this effect.
There is a substantial likelihood that everyone will need medical care at some point. A person with a communicable disease will be treated whether or not he or she is insured. A person in an automobile accident will be rushed to the hospital for treatment, whether or not there is insurance. Congress simply would be requiring everyone to be insured to cover their potential costs to the system.
Congress also could justify this as an exercise of its taxing and spending power. Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the medical care system. This is similar to social security taxes, which everyone pays to cover the costs of the social security system. Since the 1930s, the Supreme Court has accorded congress broad powers to tax and spend for the general welfare and has left it to congress to determine this.
The second issue is whether the mandate for purchasing health insurance violates individual rights. I have heard many say that they have the right to choose not to buy health insurance if they don’t want it. But there is no such right in the constitution. In most states, individuals are required to have automobile insurance as a condition for a driver’s license. Businesses of all types are required to have various kinds of insurance.
Since the late-1930s, the Supreme Court has ruled that government economic regulations are to be upheld so long as they are reasonable. Virtually every economic regulation and tax has been found to meet this standard for over 70 years. The mandate for everyone to purchase health care is reasonable as a way of insuring coverage for all, including providing funds to insure those who cannot afford it. There is thus no realistic chance that the mandate for health insurance would be invalidated for violating some individual right.
Thus, those who object to the health care proposals on constitutional grounds are making an argument that has no basis in the law. They are invoking the rhetorical power of the constitution to support their opposition to health care reform, but the law is clear that congress constitutionally could do this. There is much to argue over in the debate over health care reform, but constitutionality is not among the hard questions to consider.
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Some would have you believe it’s covered in the Commerce Clause. That's how Congress legislates all kinds of various programs… a power that has been grossly abused and distorted beyond all meaning. The illegal acquisition of powers by a central government through a process of slow accretion was exactly the sort of thing Hamilton was warning us about back in 1787 (Federalist Papers).
The Commerce Clause is intended for the regulation of economic activity across state lines that involve the production distribution or consumption of commodities. One does not go to a doctor to engage in commercial activity.
First, while the dean comes with impeccable credentials, this should not mislead readers to think that equally well credentialed law professors do not disagree with him. For example, the University of Chicago Law School's Professor Richard Epstein takes a diametrically opposed view on the topic.
Second, Dean Chemerisnky's argument assumes that the interstate commerce clause authorized congress to regulate--that is to say, interfere with--commerce (among the several states) but arguably what that clause did is to authorize Congress to regularize such commerce, meaning, to abolish tariffs and duties that had been imposed by states prior to the creation of the union. What Congress was authorized to do, then, is to establish a free market in the United States of America not to obstruct it.
Third, the Ninth Amendment to the U. S. Constitution makes clear that there are unenumerated rights--ones not listed in that document--which citizens also have. (Recent rulings concerning the use of contraception and sodomy have relied on this reading.)
Fourth, and more generally, in a free country citizens may never be placed into involuntary servitude to their fellows as this health care reform movement intends to do. It makes no difference that precedence exists for so treating American citizens, it is nonetheless wrong and no just constitution should tolerate it.