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Max Baucus: The individual mandate is constitutional

One of the big right wing talking points of late has been that the individual mandate is not constitutional, because the constitution does not specifically say "the federal government may impose an individual mandate for the purposes of insuring all eligible Americans." Happily, whether things are or are not constitutional is the sort of thing Senate staff check out before putting them in bills, and in a floor statement today, Baucus laid out his staff's findings on the subject. His arguments follow the jump.

Mr. President, some of my Colleagues on the other side of the aisle have asserted that the penalty that is proposed under the bill before us for failing to maintain health coverage is unconstitutional. And the Senator from Nevada, Senator Ensign, has raised a point of order that is now pending.

Those of us who voted to proceed to the health reform bill and who voted for cloture on the substitute amendment take seriously our oath to support and defend the Constitution. And we have looked at this question seriously and concluded that the penalty is constitutional.

And those who study constitutional law as a line of work have drawn that same conclusion. Most legal scholars who have considered the question of a requirement for individuals to purchase health coverage argue forcefully that the requirement is within Congress’ power to regulate interstate commerce.

Take Professor Erwin Chemerinsky, a renowned constitutional law scholar, author of four popular treatises and casebooks on constitutional law, and Dean of the University of California Irvine School of Law. Professor Chemerinsky has gone so far to say that those arguing on the other side of the issue do not have “the slightest merit from a constitutional perspective.”

In arguing that a requirement to have health coverage falls within Congress’ power to regulate interstate commerce, Professor Chemerinsky compares health care reform to the case of Gonzales v. Raich — often cited by the other side.

In Gonzales v. Raich, the Supreme Court held that the Federal Government’s Commerce Clause powers extend to the cultivation and possession of small amounts of marijuana for personal use. Professor Chemerinsky notes that the relationship between health care coverage and the national economy is even clearer than the cultivation and possession involved in Gonzales v. Raich.

Mr. President, I ask unanimous consent that Professor Chemerinsky’s Los Angeles Times article be printed in the Record at this point.

As a second example, I refer my colleagues to an article by Mark Hall, law professor at Wake Forest University. Professor Hall’s article is a comprehensive, peer-reviewed analysis of the constitutionality of a Federal individual responsibility requirement.

In it, Professor Hall concludes that there are no plausible Tenth Amendment or States’ rights issues arising from the imposition by Congress of an individual responsibility to maintain health coverage.

Professor Hall notes further that health care and health insurance both affect and are distributed through interstate commerce. And that gives Congress the power to legislate a coverage requirement using its Commerce Clause powers.

Professor Hall notes that the Supreme Court indicated in its decisions in United States v. Morrison and United States v. Lopez — two other cases relied on by the other side — that the non-economic, criminal nature of the conduct in those cases was central to the court’s decisions in those cases that the Government had not appropriately exercised power under the Commerce Clause.

Health insurance, on the other hand, does not deal with criminal conduct. Health insurance is commercial and economic in nature and, to reiterate, substantially affects interstate commerce.

Health insurance and health care services are a significant part of the national economy. National health spending is 17.6 percent of the economy. And it is projected to increase from $2.5 trillion in 2009 to $4.7 trillion in 2019.

Private health insurance spending is projected to be $854 billion in 2009. It covers things like medical supplies, drugs, and equipment that are shipped in interstate commerce.

Health insurance is sold by national or regional health insurance carriers. Thus health insurance is sold in interstate commerce. As well, claims payments flow through interstate commerce.

The individual responsibility requirement, together with other provisions in the Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services.

Under existing health and labor laws, the Federal Government has a significant role in regulating health insurance.

Other prominent legal scholars have also said that Congress has the constitutional authority to impose a requirement on individuals to maintain health coverage.

Jonathan H. Adler, Professor of Law at Case Western Reserve University School of Law, has stated:

“In this case, the overall scheme would involve the regulation of ‘commerce’ as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate.”

Doug Kendall of the Constitutional Accountability Center similarly concluded:

“The fundamental point behind pushing people into the private insurance market is to make sure that uninsured individuals who can pay for health insurance don't impose costs on other tax payers.”

Professor Michael Dorf of the Cornell University Law School noted that:

“[T]he individual mandate is ‘plainly adapted’ to the undoubtedly legitimate end of regulating the enormous and enormously important health-care sector of the national economy. It is therefore constitutional.”

And Robert Shapiro, Professor of Law at Emory University School of Law, stated:

“Whatever one thinks of the wisdom of the individual mandate, or of health care reform generally, it would be surprising if the Constitution prohibited a democratic resolution of the issue. Happily, it does not.”

Thus, Mr. President, the weight of authority is that health care and insurance represents interstate commerce. And the individual responsibility requirement to maintain coverage would be within Congress’ power to regulate interstate commerce.

By Ezra Klein  |  December 22, 2009; 6:29 PM ET
 
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Comments

Let's dismiss any allegations that legislation is unconstitutional, just because it's been passed by the senate! The senate *never* passes anything unconstitutional!

Yes, obviously if it's illegal to purchase insurance across state lines, it must be constitutional to mandate its purchase--even though that purchase is not across state lines!

Seriously, Ezra. The interstate commerce clause? That has been dragged out to justify just about anything. Please state an area of life that this could *not* be used to justify. It's shoddy and dishonest to claim any allegiance to the constitution when this is the degree of rationalization required.

The truth is that the core principles of the constitution are rights to life, liberty, property, and the pursuit of happiness. Forcing individuals to purchase a service they do not want is as blatant an infringement on individual liberty as anything I could imagine.

Posted by: noumenalself | December 22, 2009 7:22 PM | Report abuse

This seems like an extremely weak argument. Of course Congress has the right to regulate insurance commerce - but do they also then have the right to force me to buy a computer? Why not, computers are bought and sold between states, right?

The mandate is going to kill any enthusiasm the Dems had built up with young people, I will guarantee you that right now. The kids I know are following the (lazy) coverage that infers that 30 million more people will be covered - but they don't understand that "covered" is doing a lot of work in that sentence, and that they will only be covered because they will be forced to buy insurance from private companies.

They also don't understand that the subsidies are going to be distributed via tax credits AFTER they have paid their whole premium out of pocket, which is going to be a huge stumbling block for anyone who is uninsured for $$ reasons - what poor uninsured person has the cash flow to pay $12k out of pocket and wait a whole year for the tax credit to reimburse them?!

Posted by: bridgietherease | December 22, 2009 7:25 PM | Report abuse

Baucus' speech has deteriorated noticeably over the course of these past months. Listening to him today, he could barely enunciate words. What is wrong with him?

Posted by: truck1 | December 22, 2009 7:32 PM | Report abuse

Constitutionality of individual mandate - that is an interesting 'canard' by Right (and some even on Left too)! I just wish we have that big match in Supreme Court and CSJ Roberts comes on this one with his erudite opinion / judgement.

I am not aware what mechanisms exist in American System where the legislative branch can take 'firm opinion' of the highest court in kind of preemptive manner in such controversial matters so as recourse to the court is less attractive to adversaries. May be that is not consistent with 'true justice' and hence we don't do in America. Because I remember that in case of Indian Supreme Court, it has the 'advisory jurisdiction' whenever Indian President (naturally upon a request from PM / Union Cabinet) requests such counsel. (Article 143 of Indian Constitution) I am sure that it will be the case in many other Democracies too.

In American Context it is just that it leaves that much room of uncertainty in such a consequential legislation.

Mundane question - how is this different than requirement of 'car insurance'. I can avoid that only by not driving. So if I give in writing that I will never go to 'emergency room' am I okay?

Posted by: umesh409 | December 22, 2009 7:35 PM | Report abuse

Interstate Commerce?

Hahahahahahaha ... hold on a minute ... hahahahahah

Is he kidding here? They have used that to regulate everything from soup to nuts. It is certainly unconstitutional but so is Social Security and Medicare. Not one member of Congress gives any thought to the constitutionality of an issue any longer.

If I purchase a policy from a company in California, I work in California, I NEVER see a provider outside of California and I’m not even legally allowed to purchase a policy outside the State of California, how does interstate commerce apply?

Posted by: kingstu01 | December 22, 2009 7:35 PM | Report abuse

Memo to right-wingers: in the extremely unlikely scenario that the mandate is struck down by the Supreme Court, it doesn't follow that the entire bill will be struck down. More likely, Congress would need to come up with a funding mechanism (enactable via reconciliation rules, one suspects) to provide for automatic enrollment of people not covered by group plans (probably accompanied by a strong employer mandate, as well). ObamaCare would become (in the short term, at least) more expensive. It wouldn't be repealed in full.

Posted by: Jasper99 | December 22, 2009 8:08 PM | Report abuse

Baucus's argument makes no sense. If Congress wants to "regulate" health insurance, then let them. But what does that have to do with forcing me to buy a health insurance policy defined by Congress? By not buying a policy I am not engaging in interstate commerce and, therefore, Congress has no authority to "regulate" me.

For a much better analysis of the individual mandate read this http://www.heritage.org/research/legalissues/lm0049.cfm

Posted by: brentjjensen | December 22, 2009 10:27 PM | Report abuse

What is the precedent for the federal government mandating that all adult citizens purchase a product from a private interest?

There is none.

Even if a person points to "auto insurance" -- a state requirement -- even in that case, there is wiggle room (e.g. purchase of the insurance is conditional on owning a car; in the case of health insurance there is no opt out).

Even if the 10th amendment questions are ultimately overcome; the 5th amendment "takings clause" might come into play.

The federal government has pretty much unlimited authority to tax. It could levy a tax and then select winners. It can regulate commerce.

But "mandating purchase" seems like a pretty extreme form of regulating interstate commerce.

This legislation should make for some interesting litigation.

Posted by: JPRS | December 23, 2009 12:22 AM | Report abuse

The individual mandate is constitutional, but politically foolish and a major campaign promise broken by Obama. Mr. Klein seems to be implying, because staff persons check to make sure laws are constitutional, nothing Congress passes is unconstitutional. Odd, but I thought the United States Supreme Court had the final say.

As to Baucus's pious statements about defending the Constitution, sadly, that great document has been shredded by numerous presidents, probably beginning with Theodore Roosevelt, with Bush II doing more to make the Constitution less relevant than probably any other president. Congress though has allowed these presidents, except Nixon for his crimes in the Watergate scandal, to violate the Constitution.

Posted by: Aprogressiveindependent | December 23, 2009 2:10 AM | Report abuse

I'm seeing a lot of heat but absolutely no light in the comments.

Baucus = win.

Commenters = fail.

Posted by: Rick00 | December 23, 2009 9:47 AM | Report abuse

"And those who study constitutional law as a line of work have drawn that same conclusion. Most legal scholars who have considered the question of a requirement for individuals to purchase health coverage argue forcefully that the requirement is within Congress’ power to regulate interstate commerce.

Take Professor Erwin Chemerinsky, a renowned constitutional law scholar"

Talk about a fair-minded presentation. Chemerinsky is certainly renowned, but hardly centrist. What the authors means is that most scholars who agree with him agree with him. He doesn't bother to quote any of the renowned scholars who don't. So what's his point?

(A good place to see an actual discussion is volokh.com.)

Posted by: MikeR4 | December 23, 2009 5:02 PM | Report abuse

Jasper99, why is it a bad thing that Congress would just replace the individual mandate with a constitutional version if the Court ruled it was unconstitutional? It would not be more expensive, and could even be more invasive. If the mandate were merely a tax credit, it would be constitutional without serious question. Instead, Congress wants to force participation rather than reward participation.

As to Raich, the language in that ruling (and Filburn) clearly states the good being regulated is fungible. A health insurance policy is definitely not fungible. So, unlike Raich and Filburn, Congress is now trying to control what someone consumes, and cannot produce on their own, that cannot be resold.

Such a mandate also causes a disturbing result to free speech. If I oppose health insurance, and speak against it, the mandate will force me to unwillingly provide monetary support to the health insurance I oppose, or pay a fine for my choice to express my discontent with health insurance. This is one danger in compelling action, and why it does not happen without good reason.

Posted by: RichardCA | December 23, 2009 5:09 PM | Report abuse

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