Thursday, October 1, 2009

Legal eagles debate individual mandate

In the midst of all the chatter about health care reform, have you given any thought to the U.S. Constitution? I knew that’s how you’d answer! Well, me neither (ok, maybe just a little). But some folks out there have been giving it lots of thought and have been examining whether an individual mandate to purchase health insurance might violate the Constitution.



(In case you forgot, such a mandate has been included in the House proposal (H.R. 3200), the Senate HELP Committee’s bill, and the Senate Finance Committee’s proposal.)



Can Congress require us to buy health insurance? No, according to David B. Rivkin, Jr. and Lee A. Casey, partners in the D.C. office of Baker Hostetler LLP who served in the Justice Department under presidents Ronald Reagan and George H.W. Bush. In an article in the Washington Post, they write, “The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.”



The authors argue that an individual mandate is a noneconomic activity that goes beyond Congress’ authority to regulate interstate commerce pursuant to the Constitution’s Commerce Clause.



Not everyone agrees with that assessment, however. Mark A. Hall, J.D., the Fred D. and Elizabeth L. Turnage Professor of Law and Public Health at Wake Forest University School of Law and School of Medicine, writes, “Congress can use its Commerce Clause powers or its taxing and spending powers to create such a mandate.” He argues that Congress has “ample power and precedent . . . to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good.”



Steven D. Schwinn, Associate Professor of Law, John Marshall Law School, agrees with Hall. He writes, “An individual mandate is almost surely commercial in nature -- in requiring folks to buy health insurance, it requires a commercial exchange. Rivkin and Casey argue that the mandate is not commercial in nature, because it's triggered simply by ‘being an American.’ This may be true, but it misses the point of the regulation: It requires Americans to engage in a commercial exchange. This is the definition of commerce.”



Who’s right? I’m no Constitutional scholar, so I’ll refrain from taking sides on this engaging debate. If an individual mandate makes it into final reform legislation, there’s a chance that opponents of the mandate will challenge it in court. Perhaps the Supremes – the ultimate Con Law scholars – will provide us with answers, adding yet another perplexing Commerce Clause case to its archives. Future law students, beware!

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