Individual Mandates and The Constitution

One of the most controversial aspects of the health care debate is the notion of the individual mandate. The argument is that in order make the demand on insurers that they cannot exclude coverage or drastically differentiate prices for consumers based on preexisting conditions tenable (either politically or in actuality) then the insurance pools must include more healthy people. To ensure that healthy people enter the pool, whom individually have no incentive to buy health insurance if they know that they can get it after they get sick because insurance companies can’t reject them based on preexisting conditions, an individual mandate is put in place requiring everyone to purchase health insurance.  The controversy is usually pretty straight forward, boiling down to concern over the infringement of individual liberties. Whether or not we believe our government should have the right to create such a mandate, the immediately relevant question is whether creating such a mandate is constitutional or not, that is, do they have the power?

This online debate does a good job of providing the rough arguments for and against constitutionality claims concerning individual mandates to purchase products or services. This blog post collection does a good job of expanding on the ideas, creating more nuanced arguments about the constitutionality of individual mandates but does somewhat digress at the end into an argument over what “constitutionality” means and should mean. Also some interesting perspectives concerning the power politics exerts on the judicial branch.

The main argument for constitutionality is that under the Commerce Clause, which grants congress the right to regulate commerce “amongst the several states”, congress does have the power to mandate individuals in this manner because purchasing health insurance has economic effects involving interstate commerce. Some strong applications of the Commerce Clause have been the regulation of wheat grown for personal consumption, the regulation of marijuana grown for personal consumption, and upholding the “Gun Free School Zones Act” in United States v. Lopez all of which were upheld because of a connection between these acts and interstate commerce.

The main argument against constitutionality is that while not purchasing health care is certainly an economic decision and has effects on interstate commerce, allowing regulation of such cases applies the Commerce Clause far too broadly and in completely unprecedented ways. Considering that nearly every aspect of our behavior has some economic impact that permeates the whole of the economic scene applying the Commerce Clause in such a way give congress the capability to control every aspect of our individual spending and in fact our personal lives. The argument also follows that the Commerce Clause was not intended to be applied in this way because these results violate the idea that The Constitution provides congress with limited, enumerated powers. It also points out that an act of economic abstaining isn’t necessarily the same as an active economic act when regulation is in question.

I am personally somewhat of a federalist in that I approve of a strong interpretation of the tenth amendment and generally prefer my legislation closer to the chest than the national level. So it shouldn’t be much of a surprise that I lean toward the argument against constitutionality. It seems clear to me that there is a substantial difference between not purchasing health care and growing marijuana. Also if it so happens that there is not available at all levels a non-profit option for healthcare I think the mandate becomes an even greater violation of individual rights and its constitutionality becomes an even more important question. I would be a stronger advocate of a single-payer style system that was funded via taxes because I thinks its simpler and probably has a stronger constitutional argument for it.

I’d write more, but work calls. I’m interested in what you guys think.

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