Is the Individual Mandate Constitutional?

by Jack Painter

The Supreme Court is about to hear a case of great legal and political importance.  At issue is the constitutionality of the so-called “individual mandate” in the Patient Protection and Affordable Care Act, which requires most Americans to purchase health insurance starting in 2014 or pay a monetary penalty.

The question is whether Congress exceeded its Constitutional power to regulate “Commerce . . . among the several States” (i.e., regulate interstate commerce) and to make laws “necessary and proper” to carry into effect that power.

It’s unlikely the Obama Administration can justify the individual mandate as a regulation of interstate commerce.  How can the failure to purchase health insurance in itself be considered commerce, let alone interstate commerce?  If that is interstate commerce, what can’t Congress force us to purchase?

For that reason, the outcome of the case will likely turn on whether the individual mandate is both “necessary” and “proper” to carry into effect Congress’s power to regulate interstate commerce.

To succeed on the “necessary” test, the Obama Administration must make constitutional arguments that give Congress vast power over our lives, and this undermines its ability to show that the individual mandate also meets the “proper” test.

The Administration’s legal theories

The Administration makes two arguments based on Supreme Court decisions implementing the necessary and proper clause:

• The first argument relies on an established Supreme Court doctrine that Congress may regulate activity that is neither interstate nor commerce if it “substantially affects interstate commerce.”  The Administration says the failure to purchase health insurance “substantially affects” interstate commerce because, in the aggregate, people who fail to purchase health insurance ultimately impose medical costs on others through cost-shifting. (Federal law requires emergency rooms to provide emergency medical care without first inquiring about ability to pay, and the resulting unpaid medical bills raise insurance premiums for all.)

• The second argument relies on a theory never adopted by the Court that says Congress may regulate purely local activity that doesn’t substantially affect interstate commerce if the regulation is “essential to a broader scheme to regulate interstate commerce.”  The Administration says the individual mandate meets this test because the health care reform law requires insurance companies to insure people with pre-existing conditions, and without the individual mandate, insurance companies won’t be able to do that and stay in business because people will wait until they are sick to purchase health insurance.

Both of the Administration’s arguments have logical implications that raise concerns about federal power.  For example, if avoiding cost shifting justifies a federal mandate, what prevents Congress from forcing you to see a doctor for check ups, join a health club, or eat particular foods it deems healthful?  And if Congress can regulate any activity “essential to a broader scheme,” what prevents it from mandating other forms of private conduct?  All it would have to do is first adopt a permitted regulatory scheme that won’t work without a mandate and then impose the mandate.

The Administration’s arguments would permit a vast sea of federal power limited only by islands of individual rights consisting of (i) the Bill of Rights, (ii) “unenumerated” rights (such as the right to privacy) recognized by the Supreme Court under a doctrine called “substantive due process,” and (iii) a small island for non-economic activity, which isn’t subject to Congress’s commerce power under the “substantially affects” doctrine.

The implications for the “proper” test

So what does this mean for the “proper” test?

The Supreme Court has said that to meet the “proper” test, a law must be “consistent with the letter and spirit of the Constitution.”

Having a sea of federal power is inconsistent with the letter and spirit of the Constitution in at least three ways.

• It means the federal government has essentially the same powers as the states because the limits on federal and state power (the islands of individual rights) are effectively the same.

• It also means our individual liberty is at risk because existing liberty rights aren’t broad enough to protect us against things like forced doctor visits, health club memberships and diets. (Those rights arguably don’t apply where you harm others through cost-shifting.)

• Finally, it means we have abandoned the concept of self-ownership that underlies the theory of natural rights in the Declaration of Independence – the idea that we own ourselves and, therefore, have the right to be left alone as long as we honor the equal right of others to be left alone.

As a result, it is hard to see how the individual mandate meets the “proper” test.

The Tenth Amendment could also play a role in applying the “proper” test.  It says, “The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people.”  In the 1990’s, the Supreme Court held that certain federal mandates on the states are not “proper” under the necessary and proper clause (such as requiring local sheriffs to conduct background checks on gun buyers) because they constitute an unconstitutional “commandeering” of the state legislatures in violation of state sovereignty (independent authority) under the Tenth Amendment.

An unanswered question is whether the Tenth Amendment protects not just state sovereignty but also the popular sovereignty of the people, and the recent decision in Bond v. United States (2011) suggests the answer is yes.  All nine Justices agreed that states are not the sole intended beneficiaries of federalism (reserved powers) under the Tenth Amendment, and Justice Kennedy said that “federalism protects the liberty of the individual from arbitrary power.”

The Administration’s response

When confronted with this analysis of the “proper” test, the Administration tries to minimize the significance of the individual mandate:

• It says the federal government imposes mandates all the time.  The reality: A mandate makes you do things merely because you exist, in contrast to a regulation or prohibition of chosen activity, where you can make a choice to forego certain activities and avoid government coercion.  The only existing federal mandates are military conscription, jury duty, and census participation.  Unlike the individual mandate, these are all essential to the very existence of the federal government and therefore considered fundamental duties of citizenship.

• It claims economic mandates are no more intrusive than the regulation or prohibition of chosen activity.  The reality: A dozen prohibitions of chosen activity still leave you free to do an infinite number of things.  A dozen mandates can potentially occupy all of your time and consume all of your financial resources.

• It points out that Congress can always use its taxing power to achieve (i) the same thing by imposing a tax and giving a rebate if the taxpayer purchases health insurance or (ii) similar things through programs like Medicare.  The reality: That doesn’t mean Congress can use the commerce power for those purposes, and targeted mandates are a greater threat to liberty because they are politically easier to impose than broad-based tax increases.

When finally cornered in the debate, the Administration shrugs its shoulders and says we should rely on the political system, instead of the Constitution, to protect our personal autonomy.  But that abandons the idea that there are certain things the government cannot do to us even by majority vote.  If forcing people to sell things to others (a form of servitude) is impermissible, why isn’t forcing people to purchase things from others impermissible as well?

Ultimately, the Administration faces a dilemma in presenting its case to the Supreme Court.  The legal theories it uses under the “necessary and proper” clause require the Court to accept limits on federal power that are inconsistent with the letter and spirit of the Constitution.  It’s hard to see how the individual mandate can be “proper” under those circumstances.

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You can follow Jack Painter on Twitter @jackpainter1776.  Jack lives in Cincinnati and is a corporate lawyer in private practice.  He founded Liberty Alliance Cincinnati and is on the board of the Ohio Liberty Council.  His full analysis of this issue is at www.LibertyAllianceCincinnati.org/individualmandate