Is the Individual Mandate Constitutional?

Welcome to Politics Bites, where every afternoon at It's a Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on The Brian Lehrer Show, Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and the editor-in-chief of Cato Supreme Court Review, and Nathaniel Persily, Charles Keller Beekman Professor of Law and Political Science at Columbia Law School, discussed the constitutionality of the health care overhaul.

The ink was barely dry on the Patient Protection and Affordable Care Act before several states launched lawsuits challenging the bill's constitutionality. At issue specifically is the provision known as the "individual mandate," which requires every American to either purchase health insurance or pay a penalty for failing to do so. The most successful lawsuits, like Virginia Attorney General Ken Cuccinelli's last December, have found footing with the argument that forcing someone to purchase a product is outside of the federal government's authority as spelled out by the Constitution's interstate commerce clause.

The Cato Institute's Ilya Shapiro is among those who have had a hand in drafting challenges to the law's constitutionality. He said that the interstate commerce clause has been stretched to cover a wide variety of legislation in the past, but that "Obamacare" goes beyond anything we've seen before.

The current standard is that Congress can regulate channels of interstate commerce and local activities that, in the aggregate, have a substantial effect on interstate commerce. It's that prong that's at issue with Obamacare, especially the individual mandate. I've filed briefs supporting the side of the states and others who are challenging the constitutionality of the individual mandate, because for the first time ever, this would be a requirement that somebody engage in economic activity.

Nathaniel Persily disagrees. His divide with Shapiro reflects a gestating debate about constitutional authority in general. Persily said that the times and the circumstances America finds itself in weigh more heavily on the health care issue than legal precedent alone.

There are very few things the government forces you to do. Participate in the draft, fill out a census form, participate in a jury...but the argument in favor of this is, whether you think it's unprecedented or not, the problems people believe we are confronting with health care are unprecedented, they are certainly commercial in effect, and are therefore squarely within Congress's ability to regulate interstate commerce to force people to participate.

The question is bigger than whether or not the government can make people buy health insurance. It's possible that the outcome of this debate over the individual mandate's constitutionality will reshape the ideals of what our government can and should do.

The oft-cited Supreme Court case Wickard v. Filburn came up in the conversation, which is not a rare occurrence in the health care debate. In 1942, Wickard v. Filburn established the federal government's power to prohibit a farmer from growing wheat for private, non-commercial use, as it was argued that such a practice would interfere with the price controls and quotas set on wheat to aid economic recovery post-Depression. This power was solidified under the interstate commerce clause, and is seen as a landmark expansion of the government's authority over citizens' lives and livelihoods. But Shapiro said this ruling didn't necessarily set a precedent for the health care mandate.

Even in the height of the New Deal, which this was, the regulation was that existing farmers have to meet their quotas. But nobody had to become a farmer and nobody had to buy wheat, so I think the individual mandate is a step farther.

Forcing people to engage in economic activity may be a step farther, but Persily said you can't rule out the possibility that it will be an improvement. After all, the Constitution was written so that it could be changed, so that future generations could shape it to meet new challenges. Making people buy health care insurance could be constitutional—if we decide that it is.

The modern administrative state, the modern economy would be seen as completely foreign to the framers of the Constitution. One argument would be that if you want to give Congress power to regulate today's economy, you need to amend the Constitution. Another is to look at the stream of hsitory and say, we've developed an interpretation of the Constitution that allows the govenrment to work and deal with new problems. This debate has been going on since the Constitution was founded, and the fundamental question is, what are the bounds of federal power, what powers are reserved to the states, and does the health care bill push the envelope?