The Right Opinion

The Power to Mandate Health Insurance Is the Power to Mandate Almost Anything

By Jacob Sullum · Aug. 17, 2011

Opponents of the federal law requiring Americans to buy government-approved medical coverage face a daunting challenge. Because the U.S. Supreme Court has treated the power to “regulate Commerce … among the several States” like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think.

But as last Friday’s decision by the U.S. Court of Appeals for the 11th Circuit illustrated, the law’s defenders have a corresponding problem. Because a limitless “commerce clause” contradicts a fundamental constitutional principle, they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far, they have been unable to do so, which is the main reason the appeals court rejected this “wholly novel and potentially unbounded assertion of congressional authority.”

Under our system of government, the 11th Circuit noted, Congress has only those powers that are explicitly enumerated in the Constitution, with the rest “reserved to the States respectively, or to the people” (as the 10th Amendment puts it). An all-encompassing commerce clause that authorizes any mandate, restriction or prohibition aimed at behavior that might affect interstate commerce (subject to specific limits, such as those imposed by the Bill of Rights) is plainly inconsistent with this federal system.

The Obama administration, therefore, needs to explain why its constitutional rationale for the health insurance mandate – that the failure to obtain medical coverage, in the aggregate, has a “substantial effect” on interstate commerce – does not amount to such an open-ended license. Toward that end, the administration argues that health care is unique because it is expensive, everyone needs it at some point yet cannot confidently predict when, and federal law requires hospitals to treat people regardless of their ability to pay, which shifts costs to others.

As the 11th Circuit noted, however, “virtually all forms of insurance entail decisions about timing and planning for unpredictable events with high associated costs.” Based on the administration’s criteria, “there is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks,” including natural disasters, accidental death, theft, business interruption, disability, long-term nursing care and burial costs.

More importantly, the distinguishing characteristics cited by the government have no basis in the Constitution or in the Supreme Court’s commerce clause precedents. “They are not limiting principles,” the appeals court said. “Rather, they are ad hoc factors that – fortuitously – happen to apply to the health insurance and health care industries.”

These factors may help explain why Congress wants to make people buy health insurance, but they do not explain why it has the authority to do so. And if the Supreme Court ultimately upholds the unprecedented policy of mandating purchases in the name of regulating interstate commerce, future Congresses could decide there are sound reasons to make people buy other forms of insurance (to prevent cost shifting), exercise equipment (to reduce health care costs), double-pane windows (to conserve energy) and American cars (to stimulate the economy and support domestic manufacturers).

“Every day,” the 11th Circuit observed, “Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children’s education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes.”

Given the potential for wide-ranging controls over heretofore private decisions, you can see why this debate is not simply about arcane legal doctrines or arbitrary distinctions between state and federal powers. “While these structural limitations are often discussed in terms of federalism,” the appeals court noted, “their ultimate goal is the protection of individual liberty.”

By increasing the federal government’s role in medicine, President Obama’s health care reforms directly limit freedom. But the legal arguments he is using to defend them may turn out to be a much bigger threat.

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