16 December 2009

Are health care mandates constitutional?

One of the provisions of the current health care reform bills being considered is a so-called health care mandate, which would require people to purchase some level of coverage or pay a fine.

Last night, I posted on Twitter:
Someone please tell me where in the Constitution it allows Congress to force me to buy something or become a criminal, just for being alive.

And so I ask again, where is this provision?

The few answers that can be found are pretty weak. Congress trots out the commerce clause for just about everything, so that's a popular answer. The congressional power of taxation is also cited, which is pretty interesting in and of itself. If Congress justifies a mandate by claiming their power to tax, are they willing to come full circle to admit that the mandate itself is a tax? If so, how does this impact the President's pledge to not raise taxes on the middle class?

The idea of a mandate is not a new one. During the health care debate in 1994, such a mandate was also discussed. At the time, the non-partisan Congressional Budget Office wrote:
"The government has never required people to buy any good or service as a condition of lawful residence in the United States."

Further, it was "an unprecedented form of federal action." This article from the New York Times (and reposted on SFGate.com) is one of the few that is at least willing to talk about the issue of constitutionality. The last sentence is enlightening: "If the individual mandate were found to be unconstitutional, the health care overhaul as it is now structured by many committees in Congress would almost certainly collapse."

So for those of you that support the administration's health care reform plans, I'd be interested to hear your justifications for why Congress has the power to require me to buy something as a condition of living in the United States.
Post a Comment