Constitutional Law

Would the Supreme Court Strike Down Mandatory Health Insurance?

Would the U.S. Supreme Court uphold a mandatory health insurance plan? The issue is being debated on blogs and in op-eds, with some big differences of opinion emerging.

A proposal to require health insurance for every American is “profoundly unconstitutional,” according to a Wall Street Journal opinion column by two former Justice Department lawyers, David Rivkin Jr. and Lee Casey.

The authors say that mandatory health coverage could be grounded in the government’s power to regulate commerce. But the Supreme Court in United States v. Lopez struck down a federal law making it a crime to possess a gun near a school, saying it was not a regulation of economic activity permitted under the commerce clause. Rivkin and Casey argue that a health-care mandate does not regulate economic activity either.

Another argument could be that universal health care is actually a tax—a $1,500 excise tax on uninsured Americans, under one proposal. But Rivkin and Casey say this tax, falling exclusively on the uninsured, is beyond constitutional authority. “If the rule were otherwise,” they write, “Congress could evade all constitutional limits by ‘taxing’ anyone who doesn’t follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.”

The Taking Liberties blog of CBS News notes the Wall Street Journal editorial and other op-eds that have taken a similar stance. On the other side are Washington and Lee law professor Timothy Jost and Wake Forest law professor Mark Hall.

Hall wrote a 27-page paper that makes “probably the most extensive, or at least heavily-footnoted, argument in favor of the proposal’s constitutionality,” according to the blog.

Hall argues that health care and health insurance both affect and are distributed through interstate commerce. His paper cites Gonzales v. Raich, in which the U.S. Supreme Court allowed the federal government to outlaw medical marijuana under the commerce clause. He also asserts Congress may require health insurance under its power to tax and spend.

Some law professors who joined the debate on the Volokh Conspiracy blog had a more jaded opinion. They suggest that the Supreme Court may be more likely to invalidate mandatory health insurance if the Republicans sweep the 2010 midterm elections.

“The Supreme Court, institutionally, does not like to be exposed on controversial issues without any support from the political branches,” writes George Mason law professor David Bernstein. “The most ideological Justices (e.g., Thomas) may not care, but the swing voters do. So one thing I think we can be pretty sure of: If the Democrats still control the House and Senate in 2011, any constitutional challenge to health care reform will go nowhere.”

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