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Is the individual mandate constitutional?

PH2009101903625.jpgChuck Grassley: occasional defender of the Constitution, and of the individual mandate.

In a conference call, Chuck Grassley raised the idea that the individual mandate is unconstitutional. He didn't endorse it, or embrace it. Just raised the question. Suggested it could use some discussion. He's just spitballing, you know?

Before we get started down this road, yes, the individual mandate is constitutional. For a roundup of the argument, see this Tim Noah piece. For a longer, more technical explanation, see this post by law professor Erik Hall.

The summary is that you can look at the individual mandate as a tax, which is constitutional, or as a regulation forcing private actors to engage in a certain transaction, much like the minimum wage, which is also constitutional. I've also heard scholars mention auto insurance, which is an obvious analogue, and the Americans With Disabilities Act, which proved that the government can order businesses to install ramps, despite the fact that the constitution doesn't explicitly give the federal government jurisdiction over entryways.

It's also worth noting that Massachusetts has had an individual mandate on the books for a couple of years now. Its constitutionality remains unchallenged. And back in June, Grassley himself supported an individual mandate in health care. "I believe that there is a bipartisan consensus to have individual mandates," he told Fox News. He didn't add, "and to rip up the Constitution!" His colleagues Bob Bennett, Lamar Alexander, Norm Coleman, Bob Corker, Mike Crapo, Lindsey Graham, Judd Gregg and Trent Lott have also come out in support of an individual mandate, as they all co-sponsored Ron Wyden's Healthy Americans Act, which includes one. The constitutionality of the mandate has not been in question among Republicans. But some of them are getting a bit desperate.

Photo credit: By Melina Mara/The Washington Post

By Ezra Klein  |  November 12, 2009; 5:48 PM ET
Categories:  Health Reform  
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To be fair, just because a state has done something doesn't necessarily mean that it's constitutional for the feds to do the same thing.

But yes, the individual mandate is very clearly constitutional, and watching opponents try to claim otherwise has been one of the bright spots of this debate.

Posted by: Mike_Russo | November 12, 2009 6:24 PM | Report abuse

Just because something may be constitutional doesn't make it smart. Dems will pay a steep price at the polls for forcing people to buy a private insurance product and calling it reform.

Posted by: bmull | November 12, 2009 6:39 PM | Report abuse

I doubt the Democrats are going to pay a high price for this considering that most of the people who have to buy it also get subsidies to be able to afford it.

Posted by: StokeyWan | November 12, 2009 6:47 PM | Report abuse

The fact that a state may constitutionally do something does not mean that the federal governent has the constitutional power to do it. Hence your arguments about car insurance and Massachusetts carry no weight.


Posted by: dn131 | November 12, 2009 6:55 PM | Report abuse

Law Student:

The previous posters are correct, the fact that a state constitution allows for something has nothing to do with what the federal government is permitted to do. However, this mandate is clearly constitutional. Here is both sides of the argument at their best from Con-law scholars including Jack Balkin - - The basis for the mandate lies in both the commerce clause and the General Welfare Clause. Opponents of the plan cite case-law from a discredited era of Supreme Court jurisprudence (the Lockner Era, a wonderful time for libertarians). It is made clear by Prof. Balkin there are several ways in which this is constitutional.

Posted by: rollup1369 | November 12, 2009 8:59 PM | Report abuse

Ezra is such a kid------just because he wants it SOOOO MUCH for mandates to be constitutional and some of his older PINO(Progressive In Name Only) friends say it is--------then it must be true that mandates are therefore constitutional..

But Prof Mark Hall ended his essay with an out for himself and Congress...

"If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance."

None of the bills can allow for an opt out of mandates or the CBO will score that bill at many many trillions more $$$$------- thus wrecking the JOURN-O-LIST and DEM fairy tale that these health care bills are revenue neutral.

PS. And please---- no one tell Ezra there is no Santa Claus.

Posted by: johnowl | November 12, 2009 9:14 PM | Report abuse

The individual mandate is constitutional if Anthony Kennedy says it's constitutional. Essays by law professors are very nice, of course.

Posted by: robbins2 | November 12, 2009 10:31 PM | Report abuse

Ezra carelessly throws out the "obvious" auto insurance analogy without any discussion as to why it's so obvious. But it seems to me that the analogy does not hold -- and not only because it's state vs. federal (which is very important indeed).

I am NOT required to buy auto insurance by virtue of my existence. I am free to choose not to buy auto insurance -- as long as I agree not to operate a motor vehicle on publicly-financed roads. If I walk, ride my bike, and take mass transit only, I do not violate any laws by not purchasing auto insurance. Not so with the proposed health insurance mandate. With the latter, I violate federal law by not owning health insurance, even if I never leave my house and never consume any health care services.

The federal government requiring me to something because I exist is very different from a state government requiring me to do something as a condition for using state-financed public goods. There is no analogy here, no matter how often Democrats keep claiming (without explanation) that there is.

Posted by: georgecallas | November 13, 2009 8:23 AM | Report abuse

robbins2 has it exactly right. In a theoretical sense, the individual mandate is probably as Constitutional. But in the real world it's Constitutional if 5 judges of the Supreme Court say it is or if a lower court votes to uphold it and the Supreme Court declines to grant cert to an appeal.

Posted by: redwards95 | November 13, 2009 8:54 AM | Report abuse

As usual, it's a good idea to check out the opinions of the law scholars who disagree, or might disagree. and are good places to start, along with the Federalist Society reference in one of the links.
As Althouse asks, what would happen to the economic structure of the health reform bill if just the mandate were later found unconstitutional?

Posted by: MikeR4 | November 13, 2009 11:13 AM | Report abuse

Robbins 2 & redwards95 are correct. Whether the individual mandate violates the U.S. Constitution is a serious legal question that non-lawyer pundits like Mr. Klein don't understand, and thus find it easy to dismiss out of hand (plus, it's politically convenient to do so). A lawyer could see both sides of this issue.

BTW, if it's ok for Obama to change his mind on the individual mandate (which you might recall he violently opposed during his campaign, attacking Hillary Clinton on this point), then it must be ok for Grassley to change his mind on the constitutionality of the individual mandate. Right? "A foolish consistency is the hobgoblin of little minds," and lawmakers oftentimes receive additional information that persuades them to change their position. Sauce for the goose. . .

Similarly, just because Massachusetts' law wasn't challenged, doesn't mean it's constitutional (under their state constitution) -- just that no judge has ruled on it one way or the other. One could easily make the argument that the Massachusetts reforms violate ERISA, but no one has raised that challenge in court, so the law stands.

Posted by: Policywonk14 | November 13, 2009 11:17 AM | Report abuse

I spent most of my three years at law school studying constitutional law, and I've been working on health reform basically nonstop since I've graduated. Despite the fervent wishes of some, no lawyer doiing his job would ever suggest to a client that there are two sides to this issue -- the ability of the federal government to use the tax code to incentivize certain economic transactions that it thinks benefit interstate commerce is very, very settled law.

There are a certain fringe of nostalgists for the pre-1930s substantive due process jurisprudence that prohibited the federal government from doing things like banning child labor. The fact that they, consistent with their pre-existing beliefs, think that the individual mandate similarly violates their view of the Constitution does not mean that this is a live constitutional question in this universe, where we've got 70-odd years of case law repudiating that approach.

Invalidating the individual mandate wouldn't mean that one piece of health reform goes away and there are problems for the rest of it -- it would mean that huge swathes of the regulatory state would suddenly be ruled unconstitutional, necessitating a radical change in the entire structure of our government. Do you really think Tony Kennedy is a vote for *that*?

(Spoiler alert: he isn't)

Posted by: Mike_Russo | November 13, 2009 1:01 PM | Report abuse

Thank you, georgecallas. I'm not only a Democrat, but I'm to the left of the President and Congressional Dems on this issue. I just don't believe any of them is really stupid enough not to perceive the problem with this analogy, which you've articulated very well.

Posted by: AmyinCA | November 13, 2009 6:52 PM | Report abuse

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