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The constitutionality of the individual mandate

It's a credit to George Will that even in an op-ed arguing that the Supreme Court should declare the individual mandate unconstitutional, Will concludes that they almost certainly won't. As he says, the point of the challenge is to "defy a pernicious idea and clarify conservatism," which is different than overturning the law.

But it's also worth saying that, long-term, conservatism could suffer no greater disaster than the death of the individual mandate. This country will have a national health-care system, and sooner than later. The cost pressures make that inevitable. If you want that national system to be private, as most conservatives do, then your only hope is the individual mandate. That's been true in countries such as the Netherlands and Switzerland, and in Singapore, which is often upheld as a conservative model, contributions to health savings accounts are compulsory. Eliminate those options from the U.S. menu, and you're ensuring that Medicare, Medicaid or some sort of public option will eventually take over the market, as there's no constitutional issue with taxation in return for public services.

By Ezra Klein  |  January 14, 2010; 12:28 PM ET
Categories:  Health of Nations  
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This is an excellent point that doesnt get made often enough, because it involves future projections and counterfactuals, which most people have a hard time conceptualizing.

From listening to the Senate health care debate, its already become rhetorically a non-starter to be ok that tens of millions of people are excluded from having health care, which is decidedly different than it used to be, when conservatives used to argue that you and I have no constitutional right to health care, a sentiment I'm confident they still believe, as do I, yet this is politically perilous to say in 2009.

That means you'll have a national health system, as Ezra stated sooner or later. And it cant happen fast enough.

Posted by: zeppelin003 | January 14, 2010 12:45 PM | Report abuse

I read today that there is an opt out of the mandate for those who object on religious grounds. Isn't that just a huge hole for free riders? And isn't this the government giving preferential treatment to those in certain religions? Equal protection? Establishment clause?

Posted by: AuthorEditor | January 14, 2010 12:47 PM | Report abuse

George Will is an advocate for Federal takeover of the Tort system, long held to be the jurisdiction of state courts. I would love to hear him explain how Federalization of state powers over the tort system is Constitutional whereas other parts of health care reform are not.
He is welcome to reference Arizona, where caps on damage awards are unconstitutional in his explanation if he wishes.

Posted by: flounder2 | January 14, 2010 1:00 PM | Report abuse

(It should be noted that in Switzerland, for example, there is no government-run HC. Period. No Medicare. No Medicaid. No nothing. Ezra makes the case. This is exactly why conservatives like Bill Frist favor an individual mandate. And Mitt Romney calls what they have in Massachusetts a “soft” individual mandate.)

(Perhaps Ezra can now address why it’s fair that seniors in three counties in Florida get to keep their Medicare Advantage benefits while seniors in Arizona do not!)

Posted by: SisterRosetta | January 14, 2010 1:03 PM | Report abuse

I know it may be a tougher sell, but has anyone discussed increasing federal income tax rates by 2.5% across the board, then providing a 2.5% tax credit for individuals carrying qualified health insurance? The federal government provides tax advantages like that all the time, and conservatives love them. Meanwhile, it has the same effect of taxing uninsured individuals at 2.5%. Maybe I'm missing something.

Posted by: bralco | January 14, 2010 1:12 PM | Report abuse


There are ways to test for religious objection - whether someone's a member of a congregation that believes X and has been for some time, whether their minister/panel of ministers believes them to be genuine, whether they've shown a consistent pattern of behavior - we've done it for decades for things like conscientious objectors.

And technically speaking, the exemption is there to prevent a violation of 1st amendment rights to free exercise of religion.

Posted by: StevenAttewell | January 14, 2010 1:16 PM | Report abuse

Almost supporters of the individual mandate seem to have a blindspot when it comes to the inequable tax treatment for individual subscribers.

The Supreme Court may very well find it that Congress can require private citizens to purchase insurance from private companies if they don't have someone else to pick up the tab. I doubt though, that the court would uphold the gross inequity in tax treatment for self-payers.

Legislators and commentators have been oblivious to the hypocrisy implicit in requiring those who don't have tax-free coverage through their employers to pay for their own coverage with after-tax dollars.

IMHO, that disparity will be provide the opening to invalidate the mandate.

Posted by: Athena_news | January 14, 2010 1:20 PM | Report abuse

On the underlying subject, George Will is wildly bs-ing. The Commerce clause doesn't even have to enter into it. The mandate takes the form of a tax on behavior the government wants to discourage- i.e, not getting insurance. This is what is called a regulatory tax.

The government's power to levy regulatory taxes, even when the regulation might go beyond the Commerce clause, was established by the Supreme Court in the 1920s in a series of cases on regulatory taxes on gambling - hardly a panel of lefty activists. Moreover, the precedents those cases established were used as the basis for the Supreme Court's upholding of Social Security.

So unless George Will thinks that Social Security should be declared unconstitutional, he's plain wrong.

Posted by: StevenAttewell | January 14, 2010 1:21 PM | Report abuse

Gosh, it's almost like they're not interested in addressing the country's problems.

Posted by: adamiani | January 14, 2010 1:24 PM | Report abuse

Will doesn't even mention the stronger argument for the constitutionality of the mandate - the taxing and spending clause. Congress' power is almost unlimited in this arena and the mandate is structured in the form of a penalty for not having insurance. On your tax returns, you either show proof of insurance or pay a tax.

In essence, Will's argument is fringe nonsense.

Posted by: mikehoffman82 | January 14, 2010 1:43 PM | Report abuse

I'm amazed at "conservatives" urging to call the individual mandate unconstitutional when it's necessary for the continuation of private insurance while at the same time there is so much silence about the trampling on the freedom to associate for those who would have a public option.

Posted by: bcbulger | January 14, 2010 3:15 PM | Report abuse

I find it interesting that Will uses the term "conscription" in his final paragraph insofar as ruling the individual mandate unconstitutional for the reasons he's stated would set a precedent which would make military conscription unconstitutional as well.

If the government cannot constitutionally compel you to do something you don't want to do, if said thing is not enumerated in the constitution, they cannot compel you to die for your country. This is a far greater sacrifice than his example: a minor course of calisthenics.

Posted by: zosima | January 14, 2010 3:30 PM | Report abuse

Also, the individual mandate is not technically a mandate. It is actually a fee with exemption.
"All individuals must pay the following $X fee, but all individuals with healthcare are exempt from said fee."
It is up to the individual to decide what they want to do, but levying a fee is well within the powers of congress.

Posted by: zosima | January 14, 2010 3:36 PM | Report abuse

Thanks, Ezra. Now if only there were a way to prevent George Will's lies from being printed in the Washington Post in the first place.

Maybe someday a newspaper will invent a role for people to check content for accuracy before printing to avoid embarrassing itself. That would be great. When they come up with something like that, I'm sure WaPo will be one of the very first newspapers to implement it.

Posted by: allanbrauer | January 14, 2010 5:16 PM | Report abuse

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