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. Years ago I read a case called Wickard v. Filburn and the well reasoned absurdities provided by the lawyers to the court which reliably parrotted those absurdities into reasonability reminded me so identically of the Abbot & Costello routine about “What if Everybody [stopped buying mustard]” that it’s been irrevocably branded into my very marrow .

    This same Wickard v. Filburn has recently come up again, so I was wandering around the search engines in hopes of finding some scholarly work on the obvious connection between “Abbot Costello Wickard Filburn”. The most promising link sent me to this page.

    I’m weary enough now not to be disappointed in the progress of human affairs, so I wasn’t the least bit disappointed that what I was looking for don’t seem to exist, here, either. But though the thread seems to have been closed a while, I still can’t help but see poor Jon’s final concern standing there bare and alone and left out in the cold begging for at least a flashlight to cast the shadow back into Plato’s Cave –

    So to all who ponder Jon’s concern I say . . .

    Until the lawyers quit asking the judges if the red light is yellow or green, you best remember there was no Taliband until the costs of repairing the WTC’s structural errors started reaching toward the Trillion dollar mark; A man’s Greatests enemies come from his own house.

  2. Major healthcare reform should not be accoplished bt the courts as mr. turley stated, but rather by the congress.

  3. Just one other thought (from a layman’s perspective). There have been many references here to “States rights” including the author which is fine. From my point of view the Federal Government in this case is sort of jumping right over the State and going directly after me. I don’t like Chevy’s. All kidding aside I don’t know who to be more afraid anymore, the Taliban, my own government and or my Countrymen?

  4. Concerning Ohio’s AG Cordray. He concluded that State lawsuits had “no merit whatsoever” also pointing out he worked for Justice Kennedy. He must not have read the Justice’s Lopez opinion concerning the commerce clause.

    Justice Kennedy’s concurring opinion, U.S. v. LOPEZ:

    “…it would be mistaken and mischievous for the political branches to forget that the sworn obligation to preserve and protect the Constitution in maintaining the federal balance is their own in the first and primary instance.”

    “…some Congresses have accepted responsibility to confront the great questions of the proper federal balance in terms of lasting consequences for the constitutional design. The political branches of the Government must fulfill this grave constitutional obligation if democratic liberty and the federalism that secures it are to endure.
    At the same time, the absence of structural mechanisms to require those officials to undertake this principled task, and the momentary political convenience often attendant upon their failure to do so, argue against a complete renunciation of the judicial role. Although it is the obligation of all officers of the Government to respect the constitutional design …the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.”

    “It does not follow, however, that in every instance the Court lacks the authority and responsibility to review congressional attempts to alter the federal balance. This case requires us to consider our place in the design of the Government and to appreciate the significance of federalism in the whole structure of the Constitution.”

    “The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term”

    “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. . . . In the tension between federal and state power lies the promise of liberty”

    Here again another opinion Cordray must have missed.

    Congressional Research Service Report, R40725 Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis:

    “Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance.”

    “Although the federal government provides health coverage for many individuals …it has never required individuals to purchase health insurance.”

    “Whether such a requirement would be constitutional… is perhaps the most challenging question posed by such a proposal”

    “it is a novel issue whether Congress may… require a individual to purchase a good or a service.”

    “if the… power can be used to mandate the purchases of a private individual, it could be perceived as virtually unlimited in scope.”

    Mr. Cordray “…no merit whatsoever”? my eye.

  5. I think that there was a disagreement over this. If my understanding is correct and it has been fuzzy before that is why the states can have standing militias and the Feds can’t. I honestly believe that the founding folks intended for each state to be independent and when a dispute arose the Federals were to resolve cases and controversy. Fast forwarding, then came the seat belt law. It was to be used only for a secondary offense, now look at where are. It is a primary offense in most states…..

  6. Sam,

    I hope your inability to speak French doesn’t impair your ability to read Latin.

    interdum vir est mulus


    Sometimes man is (mumble mumble)


    Are you sure you got that right? I’m no mespo, but mulus is not a Latin word I’m familiar with nor it is in that handy Latin-English dictionary. Wrong would be nefas as in interdum vir est nefas, but otherwise I’ll have to admit I’m drawing a blank on that one. I’ve been wrong before expect when I’ve been mistaken.

  7. Dih posted the statement that “The States are not completely Sovereign…since there is a power above them [the Constitution].”

    I agree. That is what I just wrote: “The states are not sovereign. They are governmental entities with written limits on their sovereignty, just like the federal government.”

  8. The reason “Nullification” would be a problem is that laws nullified by one state, would still have full force in another. This is also a good reason why only the Supreme Court, a court whose jurisdiction is controlling over all other courts, should be the only court having the power to nullify an Act performed under the authority of the United States. When a lower court voids such acts, it expands the jurisdiction of that court without authority, or it creates a situation in which the laws of the United States only have force and effect in particular jurisdictions.

    Read more about “Nullification” here:

    This is not the same as saying that states are no longer sovereign. While states are not completely sovereign, they do retain some sovereignty.

    From “Introduction to American law”

    § 28. The States are not completely Sovereign, (a) It follows from what has now been said that the States are not supreme or sovereign, in the strict sense of these words, since there is a power above them. The particulars in which they have parted with their sovereignty include all the powers exclusively vested in the federal government, and all the powers prohibited by it to the States. These will be fully enumerated hereafter. For the present, it is sufficient to say, in general terms, that the States have ceased to be sovereign in relation to all national objects, but retain a qualified or partial sovereignty, extending to all internal objects. If there could have existed any doubt on this point, as the constitution was originally framed, such doubt was removed by the tenth amendment, which declares that ” the 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.” This language, while it makes the people the source of all power, both in the federal and State governments, expressly subtracts from the sovereignty of the States all the ” powers delegated to the United States,” and “prohibited to the States,” but leaves the States sovereign in regard to their ” reserved powers.” Again, the States are not altogether foreign with respect to each other. This is evident from the views already presented, since they are parts of the same nation. But I will here state several of the more important particulars in which they have ceased to be foreign by the express provision of the constitution. First, no State can refuse to give ” full faith and credit to the public acts, records, and judicial proceedings” of every other State. The importance of this provision will be more fully explained in the sequel. It must be observed, however, that this provision is not intended to interfere with the great international doctrine, that no State is bound to recognize the laws of another State affecting either persons or property within the former. No laws can have, as a matter of right, an extra-territorial operation. If, therefore, we give effect to the laws of other States or nations, it is on the principle of comity ; and this principle prevails to a very wide extent in modern times. I have only room here to say that with this general doctrine the above provision does not interfere. The States are still left to give effect or not to the laws of their sister States, on the principles of comity, established by their respective legislatures, void as violating the intent of the constitution, though not within the letter.

    (a) See Bliss on Sovereignty. The relations of the States may, perhaps, be expressed in the following propositions : —

    1. Each State is solely and entirely sovereign within its territorial limits, except only so far as it is made subordinate to the federal government.

    2. No law of any other State can have force within its limits, except by its adoption, from comity or otherwise.

    3. No rule of comity can in any case require it to allow privileges to citizens of other States which it denies to its own citizens ; the demands of comity being entirely satisfied when we make others equal to ourselves.

  9. Professor Turley has stepped over from law into history. He seems to be selling the old states rights nostrum of the “sovereign” states that contracted to create the Constitution. He wrote:

    “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.”

    But the concept of sovereign states contracting formally to found a league or confederation of States has little basis in history. Here is Sean Willentz on the topic:

    “But President Andrew Jackson proclaimed nullification pernicious nonsense. The nation, Jackson proclaimed, was not created by sovereign state governments—then, as now, a basic misunderstanding propagated by pro-nullifiers. Ratified in order ‘to form a more perfect union,’ the Constitution was a new framework for a nation that already existed under the Articles of Confederation. ‘The Constitution of the United States,” Jackson declared, created “a government, not a league.’”,1

    Looking at the Constitution itself, the States have very limited sovereignty. They cannot make treaties, and cannot even enter into compacts with fellow states without congressional consent. They are obliged to extradite criminals, and have no sovereign right to refuse to honor the public acts of other states. They cannot mint coins, emit bills of credit, or lay imposts or duties on imports or exports. They may not pass bills of attainder, grant titles of nobility, or issue letters of marque and reprisal. Unlike the federal government (which may enact uniform bankruptcy laws), the states cannot impair the obligation of contract.

    Look at the Constitution itself. If it had been a a contract between the States, then the States would have signed it. But they did not. The Framers signed it. The States did not ratify it, either through their legislatures, courts or governors. The people of the several states ratified the Constitution in conventions assembled for that purpose, and for no other purpose.

    The Constitution is the supreme law of the land. It created a limited federal government, but it also imposed limits on the potential tyranny of the several states. The contract, if any, was between the people and the new federal government. As Professor Willentz demonstrates, the states rights doctrines of nullification, interposition and massive resistance were the inventions of revisionist historians down through the years.

    If the states want to challenge the health care mandate, they must point to the violation of specific provisions of that constitution, not simply plead “sovereign” rights of states. The states are not sovereign. They are governmental entities with written limits on their sovereignty, just like the federal government.

  10. Blouise, sorry, I don’t speak French. Hablo un poco de Espanol. Oh, and I can count to twenty in German.

  11. Sam,

    I’m sure she is a lovely woman with the patience of a saint … but no … I be not she for if I were, you would possess a perfectly hideous pillow embroidered with my newly learned phrase:

    interdum vir est mulus

    Hah … top that one my new friend!

    (Thanks to mespo, Joe, and Byron)

  12. Joe

    Blouise and mespo727272

    The correct would be canis lupis, but mespo and I were getting into the gutter so I was using the slang vernacular, even though it turned out that we were both writing over a misunderstanding.
    mea culpa for answering without reading


    Slang latin? Isn’t classical enough? Take pity on this poor musician … I don’t know if google even does slang latin …..


    Scotch, vodka, gin … or something girly like white wine … I raise my glass to you!

  13. Blouise and mespo727272

    The correct would be canis lupis, but mespo and I were getting into the gutter so I was using the slang vernacular, even though it turned out that we were both writing over a misunderstanding.
    mea culpa for answering without reading

  14. Blouise:

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


    My wife has carved that over our threshold. I thought she was being profound. Now to find only that she’s being honest. I’ll take that drink now.

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