obamacareby Rob Natelson

There have been some on-line discussions recently of whether a federal mandate that individuals obtain health insurance would violate the U.S. Constitution. This issue is distinct from the issue of whether other sorts of government health programs – such as single-payer – would be constitutional.

It is also distinct from whether states can impose insurance mandates. They can: States have general governmental powers. But the federal government has only the powers enumerated (listed) by the Constitution.

Let us be clear at the outset that federal involvement in health care (except in a few isolated instances, such as federal employee benefits) certainly violates the Constitution as that document was originally understood.

I have now spent nearly twenty-years of my life researching and publishing scholarly studies on the Founding-Era record, and I have found no significant evidence that those who wrote and ratified the Constitution thought federal power would extend to health care. Quite the contrary: When the Constitution was being promoted to the public, one of the big selling points was that regulation of all such matters would remain exclusively with the states.

So for those who subscribe to the widely-held view that the Constitution, like any other legal document, means today what it meant when adopted (aside from amendments), there is no real question: Federal health care mandates are unconstitutional.

The more-discussed point, however, is whether such mandates are within the federal government’s authority as that authority is applied by the Supreme Court today. More specifically, does the mandate qualify under Congress’s Commerce Power as a law “necessary and proper for carrying into Execution” the power “To regulate Commerce . . . among the several States. . . ?”

Recent Supreme Court cases are split between (1) those that hold that a law qualifies if it regulates an activity that “substantially affects” interstate commerce and (2) those that hold that a law qualifies if Congress could rationally believe that the activity “substantially affects” interstate commerce. Because of changes in personnel on the Court, it is not clear which standard the Court would apply. Of course, everyone agrees that health care activity as a whole “substantially affects” interstate commerce.

Nevertheless, federal health insurance mandates face at least two difficulties meeting either of the modern Court’s standards for the federal Commerce Power. The first is that just doing nothing — not buying heath insurance — is not an “activity.”

In a famous case relied on by those who think mandates are constitutional, the Court upheld application of maximum acreage legislation to a farmer who kept the wheat sold on his “excess” acreage for his own use. But in that instance, the farmer was engaged in a commercial business, and sold much of his product on the open market. In another case similarly relied on, the Court extended the Commerce Power to people who grew, exchanged, and used medical marijuana. But, again, in that case those regulated were actually engaged in activities that could be regulated.

But most of those commanded by federal insurance mandates are doing nothing but breathing.

A second potential constitutional problem is that if the Court were to uphold a regulation on people doing nothing to regulate, then the justices really would have to confront the question of where there is anything outside the federal commerce power. For years, critics of the modern Supreme Court have attacked its expanded commerce power jurisprudence with the reductio ad absurdum argument that the court’s jurisprudence would permit Congress to regulate people just for breathing.

Now that absurdum is here. Certainly the Supreme Court is sensitive enough to legal consequences to hesitate before taking that final step.

The Supreme Court also is sensitive to political consequences. Mandates are likely to prove quite unpopular with an outspoken and influential part of the American population. Although most Supreme Court justices probably do not consciously consider the popularity of a challenged law, history suggests that such factors have a subconscious effect.

At any rate, these are serious questions, worthy of serious consideration by Members of Congress. Members of Congress should not merely blow them off as irrelevant, as Speaker Pelosi has infamously done. After all, our legislators take an oath to uphold the Constitution, just as Supreme Court justices do.

Rob Natelson is a constitutional law professor at the University of Montana, and runner-up in the 2000 “open primary” for Governor of Montana. His opinions are his own, and should not be attributed to any other person or institution.

Rob Natelson

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