Does an Individual Mandate Violate the Constitution?

Posted on August 17, 2009
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After it became apparent that an individual mandate for purchase of health insurance was included in both the Senate and House health reform bills, the debate began over the constitutionality of such a mandate.  The argument takes place on two fronts, the Commerce Clause and the Takings Clause

Conversation primarily centers around the Commerce Clause, with supporters of the mandate arguing that since the New Deal, the federal government has retained the power to regulate interstate commerce.  “Although health delivery is often local, most medical supplies, drugs and equipment are shipped in interstate commerce. More to the point, most health insurance is sold through interstate companies.”  Opponents of the mandate argue that this does not apply to citizens who refuse to participate in the interstate commerce, but are met with counterpoint that the action of refusal actually has an effect on interstate commerce, because in shrinking the risk pool of insured the premiums would incrementally rise.

As for the Takings Clause, opponents of the mandate believe that forcing a citizen to pay for a service they do not want and will not use violates the prohibition of government taking of property without just compensation.  Supports of the mandate return that the classic “taking” applies to an individual, while  the mandate would apply to everyone, and so this could be seen more like a tax than a taking.  Further, the individual does receive medical insurance which is worth a comparable amount.

Commentary: This was an interesting, accurate, and fair analysis of a notable side issue in the health reform debate. It’s important to keep in mind, particularly in light of so much mis-information being crammed into the popular consciousness, that there are important legal issues which go along with health reform.  As part of a profession which is trained to make informed, compelling arguments that must be supported by a factual premise, we are in a unique position to debate these issues without the vitriol and distrust that permeates the national debate.  This article is an excellent example of such conversation.

From “Can Barack Obama Make you Buy Health Insurance?” (Slate.com), August 4, 2009.

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