One of the more startling provisions of the health-care bill making its way through Congress is its empowerment of the federal government to compel all US citizens to purchase health insurance. From the moment I first heard about this unprecedented arrogation of power I’ve wondered just how, on any reading of the Constitution, the legislators could possibly imagine that Congress has this authority.
In an editorial piece published yesterday, the former Senate Judiciary Committee chairman Orrin Hatch argues that they don’t. Is he right?
13 Comments
I wonder if anyone tried Hatch’s arguments on the supreme court when they passed social security. Why is forcing us to save for retirement so different from forcing us to pay for healthcare?
Hatch is wrong.
1) Wickard v. Filburn – http://en.wikipedia.org/wiki/Wickard_v._Filburn
2) Carve-outs for individual states have many precedents — Alaska is the poster child — if this is unconstitutional, then plenty of other instances are also unconstitutional.
3) The Federalism argument is bogus. Many conservatives recently supported legislation which would effectively nullify state laws regarding gun ownership (e.g., if Alabama allows you to own an unregistered firearm but New York doesn’t, you can walk around Manhattan carrying the weapon with impunity). Ditto for state laws about euthanasia, medical marijuana, and lots of other issues where states’ authority is trumped by the federal government when social conservatives find things they object to. Not sure how Hatch voted on these issues, but I would be surprised if he consistently backed the right of states to pass legislation free of federal interference.
Chris,
what’s different here is that this mandate does not take the form of a tax. If there were a nationalized health program for which we were all taxed that would be another matter. But this compels private party A to purchase goods from private party B, which is unprecedented in federal law, as far as I know.
Pete,
I think there might be an important distinction to be made regarding Wickard v. Filburn and the current situation: in the former case the government enjoined a farmer not to grow wheat, whereas in the latter it actually will actually compel citizens to purchase certain private-sector services. That’s very different, no?
Also,the gun-law example you mention isn’t apt, I think, because it deals with rights that are specifically enumerated in the Second Amendment. No state can deny citizens such rights. But there is certainly no “compulsion to purchase goods” to be found anywhere in the Constitution, nor anything granting Congress the power to enforce such a compulsion.
And it isn’t just social conservatives who play these games, as I’m sure you know, you scalawag. Everyone mounts these constitutional challenges to states’ rights when it suits them, as we have seen, for example, with Roe v. Wade, and the various suits brought by atheists, civil-rights groups, etc.
I think the broader holding from Wickard is that the interstate commerce clause basically extends to every form of commerce, regardless of whether a product or service actually crosses state lines. Since insurance companies are involved in commerce, therefore they are subject to federal regulation.
As for the fact that buying insurance is a positive obligation: so is the payment of Social Security taxes, in which wage-earners and their employers are obligated to buy something (basically an annuity for the wage-earner) through forced payroll deductions.
While the Second Amendment arguably allows citizens to own weapons (the ambiguity resulting from whether or not you interpret the language to make membership in “a well regulated Militia” a requirement), it is generally not interpreted as an absolute. Hence depriving felons the right to own sub-machine guns survives court challenges. While states differ on what restrictions are reasonable, states can “deny citizens such rights,” albeit with frequent legal challenges regarding where the limits of Second Amendment protections are.
No argument that progressives take both sides of the issue on federalism: for example, opposing the federal government’s intrusion in euthanasia and supporting it in abortion rights cases. However, states’ rights are not a fetish on the left, as they have been on the right, which embraces limited federal government as a core principle.
Maybe Jesse Kaplan can weigh in here.
Actually, Peter, the Wickard ruling might be particularly resistant to generalization in this case, because as matters stand the sale of health insurance, unlike wheat, is not conducted across state lines — a flaw in the current system that free-market advocates have been complaining about for a while now.
As I pointed out to Chris above, the Social Security tax is just that: a tax, paid directly to Uncle Sam. Congress does have the authority to tax and spend; nobody is disputing that. What is at issue here is whether it has the authority to compel private citizen Smith to buy something from private vendor Jones, which is a very different matter indeed.
It is well established that convicted felons forfeit various rights; that’s really not the point. What is at issue in Second Amendment cases is the States’ ability to restrict rights that the Constitution explicitly enumerates and insists “shall not be infringed”. The Roberts Court is supposed to hear McDonald v. Chicago later this year; we’ll see what happens. (I live in a city with some of the most restrictive gun laws in the nation, and am hoping that things loosen up considerably. The current laws here in NYC make it onerously difficult for me even to possess firearms in my own home for the defense of my own property, and what with society on the verge of collapse and all, I’d like to stock up.)
Finally, you are correct: states’ rights are far less popular with the left, whose fetish for the expansion of federal government is instead a core principle.
1) From Wickard: “If the strategic character of this industry in our economy and the chaotic conditions which have prevailed in it do not justify legislation, it is difficult to imagine what would … Congress under the commerce clause is not impotent to deal with what it may consider to be dire consequences of laissez-faire.” I read this to mean that Congress has the right to a) regulate strategic industries and b) prevent dire consequences of laissez-faire. Others may differ, but I think that Orren Hatch has a tough putt here.
I’m not sure why the fact that insurance must be purchased from private vendors is constitutionally relevant. Nobody is forced to buy something from a specific vendor, as long as you purchase insurance from any vendor.
2) Civil liberties enumerated in the Bill of Rights are routinely infringed. Despite my freedom of speech, I can’t publish troop movements in a time of war or child pornography. I can’t yell “fire” in a crowded movie theater or urge people to assassinate Obama. Hell, you can’t even hold up a sign saying “Bong Hits 4 Jesus” if you’re in high school. My rights of free speech are infringed when the government can prove a greater societal value. The Second Amendment is similarly not absolute. I can’t own a nuclear weapon. Minors can’t buy weapons. The rights in the Constitution are broad but not infinite.
Peter,
1) You don’t see a difference between the government’s levying a tax in order to provide services and compelling its citizens to make a private-sector purchase?
2) Agreed (though minors, like felons, don’t count). I’m curious to see just where the Court draws the firearms-rights line later this year. Given its composition I am optimistic that they will find for increased liberties in this area.
I see the difference (between a government tax and a mandate to buy insurance from private vendors), but I don’t think that there is anything unconstitutional about the latter.
If the government is going to provide universal (or near universal) health coverage, it has a legitimate interest in seeing that there are no freeloaders who game the system by signing up for insurance only when they are sick. If there is no public option and only private entities offer the insurance, so be it. It’s a perfectly legitimate argument to say that the government shouldn’t do this, but I don’t see why such a mandate would be instrinsically unconstitutional.
It’s unconstitutional for the very simple reason that nothing in the Constitution grants Congress the power to compel me to buy something. Congress has the power to levy taxes, but not to tell me what to spend my money on.
Depends how you interpret the general welfare and interstate commerce clauses of Article 1 Section 8. Heroin is illegal, although there is nothing in the Constitution which indicates that Congress can make drugs illegal (except these two clauses). Ditto for requiring school attendance for kids, mandating safety standards for the food supply, setting pollution limits on coal plants, and all sorts of things never envisioned by the Founding Fathers. The constitutional argument is that if Congress determines that universal health care is required to improve the general welfare, it therefore has the power to require that some citizens purchase insurance. (Alternately, since most or all insurance companies operate in a number of different states, it has the authority to regulate the industry through the interstate commerce clause, even if an individual can only purchase insurance from the affiliate in his state.) I think these are strong arguments which would survive any court challenge.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…
I’d say that telling Peter he has to buy something from Paul is neither a Tax, a Duty, an Impost, or an Excise. At the very least it is entirely without precedent.
I have no doubt that this will come before the Court, should the bill be passed. I guess we’ll just have to see how it turns out.
We’ll see. In any event, the court case is unlikely to be as entertaining as Cohen v. California.
http://en.wikipedia.org/wiki/Cohen_v._California