Is the Individual Mandate Constitutional?

Posted Tuesday, February 8, 2011 by Simeon Talley

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  • Is the Individual Mandate Constitutional?

“Instead of bringing a knife to a gun fight, liberals brought a copy of the Harvard Law Review to a Tea Party rally,” writes Adam Serwer at The American Prospect. By any means, conservatives intend to repeal, replace (with what who knows?), render unconstitutional, and unequivocally kill health care reform. Repeal votes in the House and Senate failed but regurgitated all the invasion of “freedom” and “liberty,” the-sky-is-falling rhetoric from last year. And last week, a federal judge ruled the Affordable Care Act unconstitutional. Even after passage the health care reform law is essentially dominating the discourse.

Serwer’s point is that the debate we are having over health care reform in Congress and in the courts is political. OK, sure we knew that already. But it has been more intensely political and partisan than most Democrats were prepared for.

Judge Roger Vinson, appointed to the federal bench by Ronald Reagan in 1983, found the individual mandate to violate the Commerce Clause in the Constitution because it regulates economic inactivity.

Vinson reasons that:

The threshold question that must be addressed is whether activity is required before Congress can exercise its power under the Commerce Clause (Vinson finds that it is)… As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established “outer limits” of the Commerce Clause and effectively remove all limits on federal power.

The seventy-eight page decision [PDF] reads like a Tea Party manifesto, a conservative treatise on the virtues of limited government and ills of congressional overreach. Concluding that the individual mandate is indispensable to the integrity of the entire law or “inseverable”, Vinson throws out the baby with the bath water.

So, is the individual mandate constitutional? Charles Fried, solicitor general under Ronald Reagan recently testified at a Senate Judiciary committee hearing that it is. "I am quite sure that the health care mandate is constitutional,” said Fried. To be fair, Fried doesn’t think it’s good policy, but constitutionally sound, yes.

Indeed the individual mandate has its genesis on the right. Ezra Klein interviews ‘Father of the Mandate’ Republican Mark Pauly: “We did it because we were concerned about the specter of single payer insurance, which isn't market-oriented, and we didn't think was a good idea. One feature was the individual mandate.”

As to the constitutionality of the mandate, Pauly says: “I don’t remember that being raised at all. The way it was viewed by the Congressional Budget Office in 1994 was, effectively, as a tax. You either paid the tax and got insurance that way or went and got it another way. So I've been surprised at that argument.” The reality is that uninsured individuals have an enormous impact on the insurance market.

Constitutionality isn’t really the right question at all. Granted, it’s likely that this issue will make its way to the Supreme Court. But health care reform has become politicized in such a way that in the conservative mind it crystalizes big overbearing liberty depriving government. Instead of a sensible effort animated by ideas from the left and the right to achieve universal coverage.

Klein gets it right when he writes, “Whatever the legal argument about the individual mandate is about, it's not, as some of its detractors would have it, a question of liberty.”

It wasn’t until Democrats adopted the individual mandate did it become unconstitutional. And once again, Democrats have an opportunity to defend the law on principle. They can do that by citing the most popular provisions, certainly, but also by arguing a philosophical rationale for governance. I know, I know, complaining about what government can’t do polls well these days. But if universal health care reform is to stand, the public and both political parties (and the judiciary) will have to accept an active role for government.

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