Tuesday, April 6, 2010

Is the individual mandate constitutional? Part 1

A major aspect of the recently-enacted health care legislation is the so-called individual mandate, which requires that all individuals who do not fit a narrow range of exceptions possess health insurance. Those individuals who do not fit one of the exceptions and who do not possess health insurance will have to pay a fine that will be collected by the IRS.

Fourteen states, as well as four individuals, have now filed lawsuits challenging this aspect of the law as unconstitutional. The underlying issue is: Has Congress exceeded its enumerated powers by requiring some individuals to purchase health insurance or else pay a penalty?

With several exceptions not relevant here, Congress may only enact legislation that falls within the scope of the enumerated powers delegated to it by Article I, Section 8 of the Constitution. (All other powers are reserved to the states or to the people by the Tenth Amendment.) In defense of the individual mandate, the government will almost certainly invoke the Commerce Clause, one of Congress’s enumerated powers, and may also invoke the Taxing and Spending Clause as a separate enumerated power that could justify the enactment of the individual mandate.

In this post, I’ll give a brief overview of current Commerce Clause jurisprudence. In my next post, I’ll discuss several particular precedents in this area of the law and how they might affect the constitutionality of the individual mandate. Subsequent posts will discuss the Taxing and Spending Clause and other issues related to the pending lawsuits.

The Commerce Clause gives Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. The Commerce Clause is most commonly invoked in the context of the second type of commerce, namely, interstate commerce. The Supreme Court has held that Congress may properly invoke its interstate commerce power to regulate three categories of activities or things: 1) the use of the channels of interstate commerce (e.g., transporting a minor across state lines for an immoral purpose); 2) the “instrumentalities of interstate commerce” (e.g., safety regulations for vehicles that transport goods across state lines); and 3) activities that “substantially affect” interstate commerce (e.g., national minimum wage laws, which, among other things, prevent states from lowering their minimum wages to give local corporations an unwarranted advantage over the corporations of other states in interstate commerce).

The government will try to invoke the third, “substantial economic effects” category when justifying the individual mandate. And the Supreme Court has used that category to countenance very expansive exercises of congressional authority. My next post will discuss several seminal cases in Commerce Clause law and their application to the individual mandate issue.

6/3/10 CORRECTION: I've added the phrase “With several exceptions not relevant here, . . . ” to the beginning of the third paragraph. The paragraph as originally written was inadvertently incorrect because it didn't take into account, for instance, the congressional power found in Section 5 of the Fourteenth Amendment.

No comments:

Post a Comment