There has been an ongoing debate on the Jalk Balkin's blog balkinization on the question of whether Congress has the authority under the Constitution to require individuals to purchase health insurance. Ruth Marcus at Real Clear Politics has written a clear and concise essay concluding that Congress does indeed have this power under Commerce Clause and the Tax and Spending Clause.
Here is a link to Balkin's blog - scroll down to his posting on November 24 entitled "More on the Constitutionality of the Individual Mandate for Health Insurance," from which you can link to earlier installments of the debate. And here is Ruth Marcus' article of November 25, in which she concludes that both the Commerce Clause and the Tax and Spending Clause confer authority upon Congress to require people to have health insurance. I have nothing to add to Marcus' analysis – I don't think that there is any serious doubt about this question. The only additional information you might wish to have is the language of the each of those provisions of the Constitution.
The Tax and Spending Clause is contained in Article I, Section 8, Clause 1 of the Constitution. It states:
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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
The Commerce Clause is at Article I, Section 8, Clause 3, and it says:
[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Finally, Congress' power under the Tax and Spending Clause and the Commerce Clause is enhanced by the language of Article I, Section 8, Clause 18 – the Necessary and Proper Clause:
[The Congress shall have power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Marcus correctly finds that Congress has the power to regulate the health insurance industry, which is national in scope and which has a dramatic impact on interstate commerce, and Balkin correctly notes that you would have to revert to a pre-1937 understanding of the Constitution in order to take the position that Congress lacks the authority to regulate the health insurance industry.
Some people might wish to go back to a time when Congress only had the power to regulate the movement of goods across state lines and otherwise had no power to regulate the economic life of the nation. If we were to revert to that rule, a number of federal laws would be unconstitutional, as would the agencies that administer those laws. The Environmental Protection Agency, National Labor Relations Board, Securities and Exchange Commission, Fair Labor Standards Board, Equal Employment Opportunity Commission, Federal Deposit Insurance Corporation, Federal Mine Safety and Health Review Commission, Nuclear Regulatory Commission, Pension Benefit Guaranty Corporation, the Small Business Administration, and a host of other agencies would all disappear – and their functions would be performed, if at all, by state and local government.
Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue. Professor Huhn has taught Constitutional Law at The University of Akron for over 25 years. Visit his website on constitutional law for lessons and materials in his course on Constitutional Law as well as links to other resources.
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Without going back to the pre-1937 understanding of the Constitution, I still think there's a big difference between regulating an industry and regulating an individual's participation in that industry. Certainly the FDIC is constitutional, but I don't think a federal law requiring that I deposit my savings at an FDIC-insured bank would be.
I also would question the impact of the health insurance industry specifically on "interstate" commerce given that, to my understanding, most if not all states currently prohibit the purchasing of health insurance from another state. As a relatively young and healthy individual, if I chose not to participate in the health insurance market in Ohio, the average health risk of the pool would increase. But if I cannot legally buy insurance in, say, Colorado anyway, my decision not to participate has no effect on risks or premiums in Colorado at all.
On the other hand, if the individual mandate is to be enforced through the IRS, I would agree that the Tax and Spending Clause seems to allow it. I suppose it could be seen as a general poll tax which can be avoided by showing the appropriate documentation, just as with any other tax credit.
The Professor dismisses the constituitional attack on the individual mandate too quickly. The individual madate is unique. The purchase of insurance can be tied to some privilege or license. Thus, liability insurance can be required as a condition to driving and malpractice insurance can be mandated as a condition to practiceing a profession. But what activity or privilege is the predicate for mandating the purchase of health insurance form a private insurer? Living in America? Breathing?
The infamous case of Wickard v Filburn, cited in the article by Ruth Marcus, does not support the constitutionality of the individual mandate. At least in that case, there was some economic activity to support the Supreme Court's decision that an Ohio farmer growing grain solely for his own consumption, had some marginal effect on the interstate price of grain. The Court did not, however, require Mr. Filburn to grow any wheat. In the case of Obamacare, however, Congress would be requiring individuals to purchase insurance. It is one thing to regulate economic activity. It is quite another to compel activity in the first place so that Congress can impose regulations.
The legislation fares no better under the tax and spending clause. Although the individual mandate is to be administered under the tax code, it is not a tax (at least as presently structured). The example of Social Security, mentioned by Marcus, only highlights its difference with the individual mandate. Social Security is a tax. The individual mandate is not. Furthermore, imposing a penalty, via the tax code, for the failure to purchase health insurance hardly fits the definition of a tax.
This points to an interesting irony in the ongoing health care debate. If Congress simply nationalized health care funded by a "health tax", such a scheme would probably pass constitutional muster under the tax and spending clause. By attempting to go only half way, the current legislation is open to atack.
As Scott wrote, there is a huge difference between regulating an industry and compelling individual citizens to purchase goods or services offered by that industry. The constituionality of the former does not justify the totalitarianism of the latter.
If the citizens are not to be required to purchase basic healthcare coverage plans or insurance against catastrophic medical conditions, should the hospitals and emergency facilities be required to treat them if they cannot pay the going rate for any services they seek?
Dan,
Of course hospitals and emergency facilities should not have to treat people who can't pay for the services. Just like people can't go into McDonald's and demand a cheeseburger if they can't pay for it or go into Best Buy and demand a hi-def TV if they have no way to pay for it, people have no right to medical treatment they can't pay for. In fact, I think there is a much better case for the unconstitutionality of laws that require hospitals to treat patients, see U.S. Const. amend XIII, than for laws that impose the individual mandate, which I would agree that under the post-1937 application of the constitution are constitutional.