Is the Individual Mandate Constitutional?

Tuesday, January 18, 2011

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?


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Comments [24]

Aaron from New York City

First, I know a lot of people will be insulted, if not outraged, by what I'm about to say, but here goes. Asking non-lawyers to give their opinions about the constitutionality of a law is like asking someone who isn't a civil engineer whether a building is structurally sound or someone who isn't a health care professional for a medical diagnosis; they may have an opinion but without the proper knowledge, their opinion is worthless.
Next, unless Social Security, Medicare and Medicaid is unconstitutional, the individual mandate is also constitutional. We are all required to pay into Social Security and Medicare whether we decide to use it or not. Most states also require employees and employers to carry and pay for unemployment insurance without the constitutionality of that "mandate" being challenged.
Furthermore, the individual states have no legal basis to opt out or challenge the new health care legislation. If a state accepts federal funding for a particular purpose, they are required to follow whatever requirements Congress or the appropriate administrative agency imposes. Thus, states that accept federal funding for education (and they all do), must also abide by Title VII and any other rules and laws passed by Congress relating to federal education funding. Since all of the states accept federal funds for their health care programs (Medicaid is a joint federal-state program), then the federal government can impose rules and regulations regarding health care and health insurance which must be accepted by the states along with the federal funds.

Jan. 19 2011 02:59 AM

I listened to Brian Lehrer's two Constitutional scholars. The last call that BL took was from a woman who commented that the US Con. is not some kind of divine word. I have two comments on this:
1) In high school we were irreverent. We freely called the founding fathers the founding knuckleheads at times. One of their knuckleheaded moves was to make the US Con. too hard to amend. Thus in order to do the nation's business, we sometimes have to twist the US Con. like a pretzel. Which leaves us open to those who then yell, "Unconstitutional."
2) The Cato Institute man reacted to the woman by invoking the word "power." The US Con. is an enumeration of powers and non-powers. There are all kinds of problems in a civil society that cannot be solved by power, that if power is invoked there follows trouble. Power creates winners and losers. More mature human beings quit thinking in terms of power and think in terms of consensus and inclusion. This does not make us 'bleeding hearts", but it looks to the power-stuck lesser minds like we are soft headed. OK, so I ask them: Which is it--Is peace the mere interval between wars, or is peace the attempt to abolish war, however weakly successful? Take your pick--and either be a real adult or a perpetual adolescent trying to get over as often as you can.

Jan. 18 2011 12:10 PM
Roger Koch from Hillsborough NJ

The guests' comments on the commerce clause being the basis for abortion restrictions is mistaken.

The basis for applying such restrictions is the right to privacy which the Supreme Court has ruled is derived from the Bill of Rights as applied to the States via the 14th Amendment - NOT THE COMMERCE CLAUSE. I suggest they re-read the Griswold and Roe v. Wade decisions.

Jan. 18 2011 12:07 PM
Marc from Westchester

The stress of the arguments on the Individual Mandate provision is on the affirmative (positive) nature of the requirement, not on its nexus to interstate commerce. However, apart from the puristic focus on judicial precedents, it should be noted that our legal system makes no distinction between positive and negative requirements , e.g., in injunctions, to effect desired results.

Jan. 18 2011 12:06 PM

Last sentence in the previous post: change "lose" to "lost".

Jan. 18 2011 11:54 AM


Is it your position that WNYC, its on-air and production personnel can only discuss a matter of public interest if they disclose their "financial ties" to the parties or interests involved; or are only parties who might differ from you required to prove their bona fides?

By the way - for you who make such a fetish of money in politics, is that why Meg Whitman is governor of California? why is Linda McMahon the newly elected senator from Connecticut? why did B. Hussein Obama lose his campaign for the presidency?

Jan. 18 2011 11:44 AM
Edward from NJ

@Dave, Full Faith and Credit and the Defense of Marriage Act. GO!

Jan. 18 2011 11:35 AM
Jack Spann from Astoria

"2nd- Amendment

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Just wondering, does this not suggest that gun owners should be part of a well organized militia? Could this not give leverage to those favoring more gun control?

Jan. 18 2011 11:34 AM
Louise Berenson from UWS

There exists an individual mandate for Medicare enrollees with respect to Part D, drug coverage. If you don't enroll in Part D as soon as you are eligible and you don't have a statement from existing drug coverage that it is as good as a Part D plan (e.g., part of retiremnt benefit), you are subject to a penalty forever when you do choose to enroll. This was written by George W. Bush's DHHS. It was never challenged as far as I know.

Jan. 18 2011 11:33 AM

Equal protection clause of the 14th amendment and gay marriage. GO!

Jan. 18 2011 11:32 AM
Mike from Queens

I'm always amused by the militia "logic".... how exactly do the gun rights folks think they could rise up against the US government? Are they stock-piling large caches of drone aircraft and stealth fighters somewhere in Montana?

Jan. 18 2011 11:31 AM
Ken from Little Neck

I think talking about the constitution and our interpretation of it is a wonderful thing, but it should be applied evenly and to all situations. You can't start yelling about the constitution just because the party you don't like is in power and passing laws. Where were these people when President Bush was trampling all over constitutional rights in the name of "homeland security"? They didn't make a peep when the government was doing warentless wiretapping or holding prisoners without charge, but all of a sudden they want to make sure poor people have health care, and it's tyranny.

Jan. 18 2011 11:28 AM

I'm tuning away because the "experts" have not revealed whether they have any financial ties to the health industry or any other.

Brian, why haven't you asked them to reveal this basic information?

Jan. 18 2011 11:27 AM
Economist from MONTREAL quebec

Insurance is interstate commerce according to an old Supr Ct decision. Thus Congress passed the McCarran_Ferguson Act to allow states to regulate insurance. But Congress has authority to regulate insurance. If healthy people drop out of insurance until they get sick, anti-selection will drive up insurance rates to make voluntary insurance unaffordable. So COngress can regulate insurance by making it very attarctive to but it. It can pass a tax of say $6000 a year and give a tax credit to cancel it out to all taxpayers who buy qualifying health insurance.

Problem solved, because it is within the Commerce Power and it is within the taxing Power and it is "Voluntary"

Why were the DemocratIC part so stupidiso?

Jan. 18 2011 11:25 AM
Doug Andersen from Lexington, KY

What protects the US against a "one-time special" decision on "ObamaCare" like Bush v. Gore?

Jan. 18 2011 11:24 AM
Andrew from Greenpoint, Brooklyn

If today's economy is unrecognizable to the framers of the Constitution, then why bother wrestling over the commerce clause's interpretation in modern times? How relevant is the original document to us today? Aren't amendments, congressional statutes, and court decisions necessary to ensure our government reflects our society in the present?

Jan. 18 2011 11:24 AM
Nate from nyc

So the guest hates mandates.. blah, blah.. same tired argument. What is his solution to the lack of affordable health care problem in the US?

Jan. 18 2011 11:23 AM

strictly speaking i suspect that it depends on how the law is structured.

as such i think that a federal requirement for individuals to buy a product is probably unconstitutional, but a creating a tax to help pay for federal contributions to state administered health benefits combined with an examption for those who buy health insurance probably is constitutional.

either way, i think the madate stinks. i've been prepared to accept it as a necessary evil, but i'd love to see congress make the numbers work without it.

Jan. 18 2011 11:20 AM

Please have your "experts" disclose any ties to industry.

Americans exploiting Americans.

Jan. 18 2011 11:16 AM
Estelle from Austin

Ilya, I think the idea is that everyone is *already* participating (those who are uninsured get care in ERs, etc. on my buck), so this would regulate *how* they participate.

Jan. 18 2011 11:15 AM
Yo from the moon

how about a discussion on the amendment stipulating the nationality and age of the president? I feel that that amendment is obsolete...

Jan. 18 2011 11:15 AM
matt from Harlem

A question for the guests....
Does the fact that a person in a less fortunate state is covered by taxpayers in more fortunate states constitute a need for regulation of commerce?

Jan. 18 2011 11:13 AM
Joe from Bridgewater, NJ

With regard to the "uniqueness" of the Individual Mandate, Ezra Klein today says:

Is the individual mandate unprecedented?
By Ezra Klein
The legal argument that conservatives have raised against the individual mandate is that it's novel because it forces you to do something when you might have preferred to do nothing. Put differently, it regulates "inactivity," and that's unprecedented. Or is it?

Guns: President George Washington signed a law that required much of the country to purchase a firearm, ammunition and other equipment in case they needed to be called up for militia service. Many of the members of Congress who voted for this mandate were members of the Philadelphia Convention that wrote the Constitution.

Civil rights: The Civil Rights Act of 1964 compelled business owners to engage in transactions they considered undesirable -- hiring and otherwise doing business with African Americans.

Insurance mandates: The Affordable Care Act is not even the only federal law requiring someone to carry insurance. The Price-Anderson Act of 1957 requires nuclear power plants to purchase liability insurance and the Flood Disaster Protection Act requires many homeowners to carry flood insurance.

Other mandates: Other laws require individuals to perform jury service, file tax returns and register for selective service.

That list comes from Ian Mulhiser. There's a good reason that Republicans didn't think the individual mandate unconstitutional when they came up with the idea in the early '90s, and there's a good reason they didn't think it unconstitutional when dozens of Republican senators co-sponsored various bills that included individual mandates in both the '90s and the Aughts. What's changed since then is not the Constitution or even dominant trends in constitutional thought. What changed is that Democrats embraced an individual mandate in a bill Republicans didn't like.

Jan. 18 2011 11:12 AM

With regards to Health Care, I can't believe no one has brought up the preamble to support Medicare for everyone. I mean, it's the first sentence...

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, *promote the general Welfare,* and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America

Jan. 18 2011 11:10 AM

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