Two conservative Republican attorneys who worked in the Justice Department during the Reagan and Bush 41 administrations argue in the Washington Post that universal health insurance coverage is unconstitutional. Their reasoning? Lacking health insurance does not have any effect on the economy:
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.
Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
Here’s another professional legal opinion on the matter:
It was only a matter of time. After Michelle Bachmann and Virgina Foxx, now come David Rivkin and Lee Casey to tell us that if health care reform passes, it will be unconstitutional. And they even drag out a case from the Lochner Era, Bailey v. Drexel Furniture, to make their case.
You see, Rivkin and Casey think that a federal requirement that uninsured individuals must purchase health insurance can’t be within Congress’s commerce power because when ordinary individuals don’t purchase health insurance, their mere failure to do so has no effects (economic or otherwise) on interstate commerce.
Got it? When people don’t buy things, by definition it doesn’t affect commerce! (For example, during recessions people stop buying things and everyone knows that has no economic effects.) On the other hand, Rivkin and Lee begin their op-ed by arguing that “[w]ithout the young to subsidize the old, a comprehensive national health system will not work.” This sounds to me like a claim that the number of people who buy health insurance affects the ability of private insurance companies to sell health insurance at a profit. So again, why is it that failure to purchase health insurance does not affect interstate commerce?