American Constitution Society for Law and Policy on the issue of individual mandates

[one...two...tree 2,762]

Simon Lazarus

Recently, some opponents of comprehensive health insurance reform have introduced a new contention – namely, that a cornerstone of the reform bills pending before Congress, a requirement that most individuals purchase and maintain health insurance coverage, is unconstitutional. This issue paper addresses this claim. The paper reviews the relevant features of the legislation, Congress‟ rationale and record supporting the requirement (generally called the “individual mandate”), relevant constitutional provisions and judicial precedents, and reform opponents‟ arguments challenging the lawfulness of the mandate. The paper concludes that the mandate is lawful and clearly so – pursuant either to Congress‟ authority to “regulate commerce among the several states,” or to its authority to “lay and collect taxes to provide for the General Welfare.”1 With respect to Congress‟ interstate commerce authority, the goals that drive this legislation – including achieving universal coverage, eliminating adverse selection, eliminating pre-existing conditions as a prerequisite for coverage, facilitating broad-scale pooling of individuals not covered by group health plans, and radically reducing costly emergency room visits by uninsured individuals – are eminently lawful objects for the exercise of that power. In the context of current health insurance market circumstances and the framework of the legislation, the use of an individual mandate, structured as it is to ensure affordability for all who are subject to it, is likewise an eminently rational and well-supported (“necessary and proper” in the words of Article I, §8) means for achieving these goals. The same goals and choice of means fit the mandate snugly within precedents broadly defining Congress‟ authority to tax and spend.

Opponents‟ arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress‟ interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress‟ judgments about its impact on statutory goals. No doubt, in some quarters, opponents‟ libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents‟ real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court‟s ideological spectrum.

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[Pooky 3,881]

Why not post this under one of the other Constitutionality threads? There are enough of them out there.

[Dan T 8]

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my issue with this quote is the implication that people against this bill are against reforming the disfunctional system currently in place and that assertion is pattently false.

[one...two...tree 2,762]

my issue with this quote is the implication that people against this bill are against reforming the disfunctional system currently in place and that assertion is pattently false.

There are 13 states whose Attorneys General have filed lawsuits questioning the constitutionality of the HCR bill that is now law. Many people against HCR echo that sentiment, so it important to look to the constitutional scholars and constitutional think tanks from across the political spectrum for their legal opinions on the matter. While someone can certainly oppose HCR for many reasons, holding on to the notion that the law itself was a circumvention of the Constitution by the Democrats in Congress and by the President is causing a lot of strife and misdirected outrage (the U.S. is being stolen from its citizens). And in context of the violence and misdirected outrage that has happened since the bill was passed, Republican leaders have a responsibility to not inflame people's anger and frustration over these recent, difficult economic times We need calm and collective heads, discussing and openly listening to such think tanks as the Constitution Society for Law on the constitutionality of this landmark piece of legislation.