Argument: The mandate is constitutional under the commerce clause

Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy.

Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. Where a Congressional power exists, nothing in law says that ”strong” and potentially more intrusive forms of action are less supported than weaker ones.(11)

Critics of an individual mandate cite recent Supreme Court cases in which the Court has limited the commerce clause’s power. However, those cases (Lopez and Morrison) involved regulation of non-economic activity. The individual mandate regulates the relationship between sellers and buyers of health care insurance. Moreover, the Court was concerned in Lopez and Morrison with efforts by Congress to intrude into areas that are properly regulated by state governments and thereby to upset the balance of power between the federal and state governments. By contrast, congressional regulation of the health care industry does not violate state prerogatives.

To be sure, much regulation of insurance occurs at the state level, but that is because Congress has chosen by statute to defer to state regulation. The Constitution does not prevent Congress from revoking its statutory grants to state governments.(12) Those who argue that this is unconstitutional maintain that those not purchasing health insurance, by definition, are not part of interstate commerce. There are numerous flaws with this argument.

First, Congress can regulate activities that themselves are not part of interstate commerce if they have a substantial effect on interstate commerce. For example, in Wickard v. Filburn, the Supreme Court held that Congress could regulate wheat that farmers grew for their own home consumption. More recently in Gonzales v. Raich, the Court ruled that Congress could prohibit cultivating and possessing small amounts of marijuana for personal medicinal use. Even though the individuals were not personally engaged in commerce, the matter still fit within the commerce power.(10)

Second, the decision to abstain from particular economic transactions is a form of commercial behaviour that Congress can regulate. The Supreme Court held that Congress could require that hotels and restaurants provide services to African-Americans. Their refusal to engage in commerce still was deemed to be within the scope of Congress's commerce clause power.(10) This is made more significant by the fact that the decision to remain uninsured can affect commerce- both within and between states- by raising health insurance premiums. This is because insurance premiums tend to rise in response to reductions in the size of the pool of individuals to whom financial risk can be distributed.(14)

Citizens who forego health insurance are forcing other Americans to cover their costs if they are sent to hospital for emergency treatment. They are also forcing others to pay higher insurance rates, now that insurance companies can no longer legally exclude those with pre-existing conditions.(15)

Third, the likelihood is that everyone will require medical care at some point. An uninsured person in a car accident will be taken to the emergency room for treatment. An uninsured person with a communicable disease will be treated. Congress can ensure that there is an adequate fund to pay for everyone's medical needs. In other words, the health care system is part of interstate commerce. Providing care for all unquestionably has a substantial economic effect. Congress, then, can use its authority under the necessary and proper clause to make sure that the system that it is creating is viable and capable of providing health care for all.(10)

Therefore the individual healthcare mandate is constitutional because it is authorized under the commerce clause of the constitution.

Candidate 1: "Mandatory health insurance is not analogous to car insurance. Car insurance requirements impose a condition on the voluntary activity of driving; a health insurance mandate imposes a condition on life itself.

States do not require non-drivers, including passengers in cars with potentially bad drivers, to buy auto insurance liability policies -- even though such a requirement undoubtedly would lower the auto insurance premiums for those who do drive. The auto insurance requirement is linked to driving and to the possibility that bad driving may cause injuries to others, including passengers in the driver's car, not to those who benefit from roads generally.(2) The primary purpose of the auto insurance mandate was to provide financial protection for people that a driver may harm, and not necessarily for the driver himself. And the auto insurance mandate is a quid pro quo for having the state issuing a privilege: in this case a driver’s license.(6)

Regarding the claim that Medicare tax provides a justifying precedent for the individual healthcare mandate, it is worth noting that the architects of Medicare harboured grave doubts about its constitutionality, which was ultimately settled on the taxing power of the United States government. However, in contrast to an individual mandate, federal benefits are attached to Medicare taxes and there is a specific “contract” involved between the current payment of taxes and future government benefits. No such relationship would exist with the individual health insurance mandate. Additionally, while one can “opt-out” of receiving Social Security and Medicare benefits, although one must still pay Social Security and Medicare taxes, none of the individual mandate proposals provide for an “opt out”, other than for yet undefined religious objections. Interestingly, a suit being led by former House Majority Leader Richard Armey is challenging a federal regulation that suggests that opting out of Medicare will put a person’s Social Security benefits at risk.(6)"
Candidate 2: "These arguments overlook the existence of two major cases – United States v. Lopez and United States v. Morrison – in which the Supreme Court has specifically rejected the notion that Congress can regulate non-commercial behaviour merely because, arguably, such behaviour can have an impact on Commerce. The Court's overarching reason for doing so was its compellingly articulated belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious. This reasoning is unassailable, and demonstrated that the individual mandate is not a reasonable application of the commerce clause.(8) Rather, this interpretation of the commerce clause could potentially America's constitutional structure. Every single decision made by individual Americans, be it buying health insurance, a car, health club memberships or any other good or service, has some impact on the economy. Such decisions could therefore be subject to regulation by Congress. Indeed, Congress would be able to determine how individuals would dispose of every penny of whatever monies they have left after paying taxes.

Meanwhile, the Supremacy Clause- which ensures that any constitutional federal legislation trumps exercises of state power- would all but guarantee that an infinitely capacious Commerce Clause would rob States of any remaining authority. This point was ably articulated by Justice Kennedy in his concurring opinion in Lopez.(8) Accordingly, there is a great deal at stake here. No matter how important the cause of health care reform might be, it is not consequential enough to destroy the very sinews of America’s constitutional system."
Candidate 3: "Insurance mandates are not a tax and therefore are outside of constitutional powers. Randy Barnett, a Georgetown University law professor, claims that health insurance mandates are not a tax, and therefore falls outside congressional power. “You're fining people for failing to enter a private insurance contract.”(3)

Moreover, as Peter Urbanowicz and Dennis G. Smith argue: “the question of whether the compelled purchase of health insurance constitutes the 'taking' of private property under the Fifth Amendment. Given the novel nature of the individual health insurance mandate, a Fifth Amendment challenge can be expected. Requiring a citizen to devote a per-cent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances could be considered an arbitrary and capricious “taking” no matter how many hardship exemptions the federal government might dispense.”(6)

Regarding the “general welfare” arguments adduced by side opposition: The words 'general Welfare' show up in the first line of Article I, Section 8: 'The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States'. Significantly, Notice the Constitution does not say the 'general welfare of the citizens of the United States.' It says "general Welfare of the United States.' This clause only gives the Congress the power to raise money to defend the country and pay for the day-to-day operations of the government. It says nothing at all about building bridges to nowhere, or paving bike paths, or spending money on any other kind of pork barrel project, including health care.(13)"
Candidate 4: "The federal government mandates positive activities all the time, and this is why several courts have also upheld the constitutionality of the individual mandate.(7)

Regarding the charge that the individual mandate penalizes a 'non-action', Stephanie Cutter, an adviser to President Barack Obama, has argued: "Individuals who choose to go without health insurance are making an economic decision that affects all of us—when people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab."(7) Thus these people are not engaging in a 'non-action' but rather in an economic choice which has negative implications for other Americans, something Congress has the constitutional power to regulate under the commerce clause and the constitution's provision that Congress should promote the general welfare."
Candidate 5: "The healthcare insurance can be unprecedented but still be constitutional as Erwin Chemerinsky argues: “Anything that has never been done before is literally unprecedented, which means it lacks any precedent. So the question is, will the Supreme Court want to authorize this new extension of congressional power in light of the fact that it violates the first principles it affirmed in Lopez and Morrison? Or, to the contrary, will it want to take the opportunity reaffirm that these principles still apply, notwithstanding Raich, in a case with no further implications beyond the statute in question?”(10)

Regarding the argument that the healthcare mandate will allow Congress to regulate everything and everyone, such hyperbole and apocalyptic predictions are familiar in this area. In 1918, in Hammer v. Dagenhart, the Supreme Court declared unconstitutional a federal law that prohibited the shipment in interstate commerce of goods made by child labour. The Court concluded its opinion by declaring: "[I]f Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government practically destroyed." For more than 70 years Congress has prohibited child labour and none of these dire predictions have come to pass. Nor would allowing Congress to mandate the purchase of health insurance mean that Congress could regulate who people invite to their homes for dinner or end our system of federalism.(10)"
Candidate 6: "A refusal to purchase healthcare insurance can have an effect on interstate commerce, because in shrinking the risk pool of insured the premiums would incrementally rise. In 2007, healthcare expenditures amounted to $2.2 trillion, or $7,421 a person, and accounted for 16.2% of the gross domestic product. These statistics leave no doubt that regulating health insurance is synonymous with regulating interstate commerce.(10)

Not engaging in economic transactions is a form of commercial behaviour that Congress can regulate. The Supreme Court held that Congress could require that hotels and restaurants provide services to African-Americans. Their refusal to engage in commerce still was deemed to be within the scope of Congress's commerce clause power.(10)

The likelihood is that everyone will require medical care at some point. An uninsured person in a car accident will be taken to the emergency room for treatment. An uninsured person with a communicable disease will be treated; indeed, it is necessary for the health and welfare of the general population to provide treatment to individuals suffering from infectious diseases. Congress can ensure that there is an adequate fund to pay for everyone's medical needs."

These arguments overlook the existence of two major cases – United States v. Lopez and United States v. Morrison – in which the Supreme Court has specifically rejected the notion that Congress can regulate non-commercial behaviour merely because, arguably, such behaviour can have an impact on Commerce. The Court's overarching reason for doing so was its compellingly articulated belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious. This reasoning is unassailable, and demonstrated that the individual mandate is not a reasonable application of the commerce clause.(8) Rather, this interpretation of the commerce clause could potentially America's constitutional structure. Every single decision made by individual Americans, be it buying health insurance, a car, health club memberships or any other good or service, has some impact on the economy. Such decisions could therefore be subject to regulation by Congress. Indeed, Congress would be able to determine how individuals would dispose of every penny of whatever monies they have left after paying taxes.

Meanwhile, the Supremacy Clause- which ensures that any constitutional federal legislation trumps exercises of state power- would all but guarantee that an infinitely capacious Commerce Clause would rob States of any remaining authority. This point was ably articulated by Justice Kennedy in his concurring opinion in Lopez.(8) Accordingly, there is a great deal at stake here. No matter how important the cause of health care reform might be, it is not consequential enough to destroy the very sinews of America’s constitutional system.
