"Mandatory Insurance Is Unconstitutional" is the unapologetic title of an op-ed last week in the Wall Street Journal by David Rivkin and Lee Casey, Justice Department attorneys during the Reagan and George H.W. Bush administrations. Investor's Business Daily wonders: "Where in the U.S. Constitution does it say the government can force people to buy health insurance?" So does an opinion article in the Christian Science Monitor, a discussion on the O'Reilly Factor, and commentary by Fox News' Andrew Napolitano.
For their part, defenders of mandatory insurance haven't engaged very much, in part because courts tend to be so reluctant to strike down federal laws in the first place. Precious few laws are ever erased from the books by the stroke of a judge's pen; lawyers use terms like the "presumption of constitutionality" and "judicial deference to the legislature" to explain this reticence. (See our CBS Evening News coverage of mandated health insurance, and a FAQ on the topic.)
Timothy Jost, a professor of Washington and Lee University School of Law who says he prefers a national public plan, has argued the constitutional principles -- saying in a Politico.com essay that the question was a Republican "talking point" that shouldn't be taken terribly seriously. "A basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the court now recognizes would permit Congress to adopt health care reform," Jost wrote.
Probably the most extensive, or at least heavily-footnoted, argument in favor of the proposal's constitutionality comes from Mark Hall, a law professor at Wake Forest University. In a 27-page paper prepared for Georgetown University's O'Neill Institute, Hall acknowledges that the federal government "has limited powers" and a law requiring Americans to "transfer money to a private party for health or economic purposes seems to be unprecedented" because laws tend to prohibit such purchases rather than mandate them.
But after walking through the arguments, Hall concludes that there are no legal objections likely to be sustained by the current Supreme Court: "Either state or federal government may require either individuals or employers to pay for health insurance. States have inherent power to promote health and provide for the general welfare. The federal government has authority under its power to regulate interstate commerce... These major points of constitutional law appear to be firmly established and are not likely to change based on the near-term composition of the Court."
So what are the objections? They tend to come from libertarians and conservatives, who agree with Hall that the U.S. Constitution grants the federal government certain limited powers -- but, while Hall interprets the language broadly and permissively, they interpret it more strictly.
To understand these back-and-forth arguments, let's start with the text of the U.S. Constitution. The document's very first sentence says "All legislative powers herein granted shall be vested in a Congress of the United States," followed by a later sentence saying Congress has the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." (Emphasis added.) And of course there's the Tenth Amendment, which says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (See our related CBSNews.com article on a grassroots effort to breathe new life into the Tenth Amendment.)
Hall suggests two paths a federal mandate can take: through the federal government's ability to regulate interstate commerce, also known as the Commerce Clause, and Congress' power to levy taxes and spend funds for the "general welfare of the United States."
Randy Barnett, a professor at the Georgetown University Law Center, rejects those two arguments in a Politico.com essay. Barnett says the Commerce Clause "was designed to deprive states of their powers under the Articles to erect trade barriers to commerce among the several states," and "did not reach activities that were neither commerce, nor interstate." As for the spending power: "There is no such enumerated power. There is only the enumerated power to tax... So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?"
In their Wall Street Journal op-ed, David Rivkin and Lee Casey take aim at Democratic Sen. Max Baucus' proposal that includes levying a $1,500 annual tax on uninsured Americans. They say: "Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a 'tax' that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by 'taxing' anyone who doesn't follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables."
Unfortunately for legal prognosticators, the U.S. Supreme Court has provided no exact guidance. In Gonzales v. Raich (2005), a majority concluded that a federal law prohibiting a California woman from growing marijuana for her own medical use is "entitled to a strong presumption of validity" -- and authorized by the Commerce Clause -- even if state law permits the medicinal use of cannabis. On the other hand, in U.S. v. Lopez (1995), the court struck down a gun-related law on the grounds that it lacked "any concrete tie to interstate commerce."
Because Gonzales v. Raich is more recent, it's presumably a better glimpse into what the court thinks. (As Justice Clarence Thomas wrote in a strongly-worded dissent siding with the medical marijuana patient named Angel Raich, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers.")
Ilya Somin, a law professor at George Mason University, wrote an article responding to Gonzales v. Raich that concludes the decision "seems to all but eliminate the prospect of meaningful judicial restriction of congressional Commerce Clause authority." Somin writes for the Volokh.com Web site, where he says: "It is extremely rare for the Court to strike down a law that enjoys strong majority support from both the general public and the political elite, and is a major item on the current political agenda. Doing that is likely to create a head-on confrontation between the Court and the political branches of government, which the Court will almost certainly lose, as happened when the Court struck down various New Deal laws in the 1930s." He adds that while the Supreme Court is likely to uphold mandatory health insurance, "such a law would be unconstitutional under the correct interpretation of the Commerce Clause -- or any interpretation that takes the constitutional text seriously."
Then again, a must-purchase-or-be-fined insurance law remains a recognizably different creature than the medical marijuana case, which dealt with punishing undesirable behavior criminally rather than requiring all Americans to purchase a service from a private company. (Automobile insurance isn't an exact parallel because only Americans who choose to drive must buy it, and the requirement comes from the states, not the Feds.) And it's true that the composition of the court has changed in the years since Gonzales v. Raich.
Still, not even conservative and libertarian scholars who would like to see mandatory health insurance shot down by the courts are betting it will be, although Georgetown's Randy Barnett holds out some hope. Call it the difference between political preference and reality, or the difference between what is and what might be.