Is the Individual Mandate Constitutional?

Below is today’s column on the constitutional challenges to the health care legislation. I will be participating in a live chat at 1:00 p.m. at the Forum with USA Today.

The new health care law has states and citizens lining up — but not quite in the way President Obama or Congress had hoped. Across the country, lawsuits are being filed that could have sweeping implications, not just for health care but our constitutional system. To date, 14 states have joined the stampede to the courthouse to challenge the legislation. One of the most contested issues is the so-called individual mandate under which Congress has ordered all citizens to get medical insurance or face fines. Though the federal government has the clear advantage in such litigation, these challenges should not be dismissed as baseless political maneuvering. There is a legitimate concern for many that this mandate constitutes the greatest (and perhaps the most lethal) challenge to states’ rights in U.S. history.

With this legislation, Congress has effectively defined an uninsured 18-year-old man in Richmond as an interstate problem like a polluting factory. It is an assertion of federal power that is inherently at odds with the original vision of the Framers. If a citizen who fails to get health insurance is an interstate problem, it is difficult to see the limiting principle as Congress seeks to impose other requirements on citizens. The ultimate question may not be how Congress can prevail, but how much of states’ rights would be left if it prevailed.

Hypocrisy rears its head
To get to the constitutional question, you first have to strip away the deep layer of hypocrisy in Washington. Many lawmakers now screaming about the sanctity of federalism voted for prior laws that were overturned by the Supreme Court on federalism grounds. Moreover, few of these mostly Republican members uttered a word of support when states opposed federal interventions on medical marijuana and physician-assisted suicide during the Bush administration. The guarantee of federalism was essential to ratifying the Constitution and embodied in the 10th Amendment guaranteeing that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Historically, however, federalism is a constitutional rule honored largely in the breach by Congress.

For states’ rights advocates, the Constitution is like a contract that is openly violated by one party with impunity. On paper, the states remain sovereign powers, while in reality the federal government appears able to dictate everything from the ingredients of school lunches to speed limits. Congress now routinely collects taxes in order to return the money to the states with conditions on their conforming to federal demands.

There is no serious basis to challenge the right of Congress to impose a national medical plan on the states. In 2008, this country spent $2.3 trillion on health care — representing 16.2% of our gross domestic product. This is a national crisis demanding a national, as opposed to a state-by-state, solution. Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals. Congress would need to show that the failure of an individual to get medical insurance constitutes an interstate commerce matter.

To be sure, the Supreme Court has stretched the meaning of interstate commerce to cover such things as the farmers growing wheat for their own consumption. Indeed, many long ago wrote off federalism as a rather quaint and outmoded concept. In Wickard v. Filburn (1942), Roscoe Filburn was growing wheat to feed his chickens, but the Supreme Court still defined the activity as interstate commerce because his crops reduced the amount of wheat on the open (and national) market. However, this was at least a traditional commercial activity. With the newly minted health care law, Congress is effectively ordering a citizen to buy a product and treating the uninsured citizen himself as an interstate problem in the same way Congress regulates endangered species.

‘Inference upon inference’
When Congress has ventured outside of traditional commercial areas, it has run into trouble. For example, in 1990, Congress criminalized certain conduct as part of its Gun-Free School Zones Act. The Supreme Court struck it down in 1995 and held that such laws did not substantially relate to interstate commerce. The court refused to “pile inference upon inference” to find an interstate claim.

This brings us back to that 18-year-old Virginian. Congress is declaring the failure to insure oneself to be an interstate matter. There is no question that being uninsured contributes to the national crisis in health care. If that 18-year-old has a car accident, it is the public that is likely to bear the costs of his care. However, if the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.

Though strong arguments can be made for health care reform and the individual mandate, these are matters that should not be decided by mere fiat of Congress but rather by the courts. Federalism was already on life support before the individual mandate. Make no mistake about it, this plan might provide a bill of good health for the public, but it could amount to a “do not resuscitate” order for federalism.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

102 thoughts on “Is the Individual Mandate Constitutional?”

  1. Byron:

    Could be, but I find “mulus” too civilized–and “jackass” too much fun to avoid.

  2. Oh lord … are you guys insulting each other in LATIN?

    Geez … the last Latin class I took was in college when I was preparing Verdi’s Requiem … so off I go to google and something comes up about puppies which I knew had to be wrong … then I get “Man is a wolf to man” except the latin word should be lupus so does canis mean dog (the puppie thing again) … and then the jackass thing

    The best I could do is “at times man (or husband) is a jackass”

    Oh well …. I need a drink!

  3. Joe:

    Right you are. I was really commenting to Sam who previously replied to you. Hence your name in the salutation. Mea culpa.

  4. mespo727272
    1, April 1, 2010 at 7:11 pm
    “I clearly stated it was something I’d been wondering about. … Your comments have done nothing constructive and have taken the topic down a road I don’t care to travel so I’ll look to others.”

    ****************

    cf., “Joe-that’s an argument I’ve had with my sorry excuse for a Congresswoman – promote vs. provide the general welfare – big difference.”

    This is the first “argument” I ever heard about that was started by the wide-eyed, innocent, and academic “wondering” of a constituent. Sorry, Sam, but words written, like facts, are pesky things.

    Mespo it is unclear to whom you were addressing your previous comments and I believe you have confused the string of whom was writing to whom. I did not make the comment regarding the congresswoman that you originally ascribed to me. Argumentum Ad hominem? Hic Sumus nunc place nobis.

  5. Joe:

    “My question was just that, because I am not a lawyer and was curious.”

    *************

    Sorry, Joe, but I find you more troll than curious. The curious are not certain enough to challenge their congressperson. You’ve just been spouting the propaganda, and feigning hurt feelings when called for it.

    “Homo homini canis est?;more like, “interdum vir est a jackass.”

  6. Ahhh I can see it now. Government run healthcare.

    I have stated before, if you received a swine flu shot you are a sheep being herded. What will they think of next.

    Despite months of dire warnings and millions in taxpayer dollars, less than half of the 229 million doses of H1N1 vaccine the government bought to fight the pandemic have been administered — leaving an estimated 71.5 million doses that must be discarded if they are not used before they expire.

    http://www.washingtonpost.com/wp-dyn/content/article/2010/03/31/AR2010033104201.html?hpid=moreheadlines

  7. mespo727272
    1, April 1, 2010 at 7:11 pm

    “I clearly stated it was something I’d been wondering about. … Your comments have done nothing constructive and have taken the topic down a road I don’t care to travel so I’ll look to others.”

    My question was just that, because I am not a lawyer and was curious. Are you truly that conceited that I should care what road you choose to travel in your life. In addition, is it your sole opinion as to what is “constructive” that matters on this blog? You obviously only wish to have discourse with like minded individuals, I wonder how that’s working out for you in reality versus cyberspace? Your attitude is very telling and a symptom of why there is so much derision in this Country. Sorry to bother you. “Homo homini canis est!

  8. “I clearly stated it was something I’d been wondering about. … Your comments have done nothing constructive and have taken the topic down a road I don’t care to travel so I’ll look to others.”

    ****************

    cf., “Joe-that’s an argument I’ve had with my sorry excuse for a Congresswoman – promote vs. provide the general welfare – big difference.”

    This is the first “argument” I ever heard about that was started by the wide-eyed, innocent, and academic “wondering” of a constituent. Sorry, Sam, but words written, like facts, are pesky things.

  9. If the state’s law suits are to be about constitutionality and the federal gov’t argument will be commerce. Do the states have an argument based on the financial hardships they claim (I haven’t read the bill) the federal gov’t is going to be placing back on them by reducing it’s own responsibilties (funding/cuts) to medicare/medicaid?

  10. Mespo – unfortunately you are misdirected on it again. You assume my “right wing drivel” was from a bumper sticker when I clearly stated it was something I’d been wondering about. I am capable of forming my own thoughts and, truth be told, the question seems logical. Your comments have done nothing constructive and have taken the topic down a road I don’t care to travel so I’ll look to others.

  11. Mespo,

    I’m not a big fan of Hamilton’s views on many subjects. However, Hamilton’s view requiring judges to follow precedent would tend to prevent what we have today. (I’m referring to the lower courts) That is, a crap shoot. From lower courts completely ignoring precedent, to appellate courts willfully ignoring and hiding those errors via memorandum opinions, the legal game of craps is not only permitted, but perpetuated. Following precedent provides for continuity in our legal system. In fact, the sole purpose of the doctrine being discussed is to provide that continuity.

  12. Duh:

    “Alexander Hamilton once stated “To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”

    ***************

    That is undeniably Hamilton’s sour view of judges and in keeping with his penchant for a strong central government free from legal constraints to temper the popular will. This approach stands in stark contrast to Jeffersonian democracy which viewed concentration of political power as a manifest evil to be counterbalanced by judicial, executive, and legislative jealousies for power. While Hamilton was a great figure in our history, there must be something in our national character that insured that his face would be conspicuously absent from Mount Rushmore and our roll of Presidents:

    “Pay no attention to what the critics say. A statue has never been erected in honor of a critic.”

    ~Jean Sibelius

  13. Sam:

    “Mespo – “right wing drivel”? I make a simple statement about something I’ve wondered and you take a sophomoric approach to responding to me.”

    ************

    I can only hope to match the elegance, gallantry, and grace contained in your introductory comment to this topic which flowed like music from heavenly harps: “Joe-that’s an argument I’ve had with my sorry excuse for a Congresswoman ….”

    By the way, no one said you were right wing drivel, merely that you were repeating their dubious “bumper sticker” legal analysis.

  14. Whether or not it is Constitution is an interesting question. I don’t believe it is. However it does not address the crucial questions. Is it workable and can we afford it?

    My answer is no on both accounts when you look at it in the long run. Businesses will opt out followed by some States & municipalities who really can’t afford t5o provide Healthcare anymore. California has a huge unfunded medical liability that is just getting worse.

    We don’t seem to understand our country is moving towards a real financial meltdown when we won’t be able to borrow at low interest rates and our liabilities in entitlements & interest payments overwhelm us. It is only the borrowing of Two Trillion Dollars that gives the appearance we are pulling out of this recession. The double dip will come in 2012-14

    Obama & Congress passing this bill is just an example of mental masturbation as we can never fulfill its promise. The train wreck is approaching and our leaders are not facing it.

  15. Mike Appleton,

    I do understand that healthcare accounts for 16% of the economy, but the overwhelming majority of that is at the state level. Insurance companies have always been regulated by the state. (At least I am under the impression that they have.) I think the problem may be that the federal government has decided to takeover what has long been a state function.

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