24 March 2010

On the constitutionality of the individual mandate

Best argument on why the individual mandate is both constitutional and necessary that I've seen thus far. . . .

From David Orentlicher:

The Supreme Court would have to overturn 70 years of case law to side with the attorneys general challenging the health care legislation. To be sure, there is a germ of truth to the argument that the federal government may not require people to buy an insurance policy. If Congress passed a law whose only provision entailed a mandate to purchase a product, and violators of the law were automatically subject to incarceration, constitutional concerns would arise. Imagine a criminal law that required people to buy an American-made automobile to bolster the domestic car industry. But that is not the kind of mandate that Congress passed. Rather, the obligation to purchase insurance, with its financial penalty of $750, falls readily within the commerce clause authority of Congress.

Under the commerce clause, Congress has the power to regulate interstate commerce, and the health care insurance industry clearly satisfies the Supreme Court's understanding of interstate commerce. Further, the new legislation constitutes an important effort to regulate the health care insurance industry. Key elements of the legislation are the provisions that prohibit insurers from denying coverage or raising prices because of a person's "preexisting" medical conditions. Under current industry practices, many people cannot obtain health care coverage because they have heart disease or other medical problems that cause insurers to refuse coverage or charge higher premiums. The new law would prohibit these denials and higher charges so everyone can purchase affordable coverage.

But insurers cannot be asked to eliminate the higher charges unless everyone is required to have insurance. Otherwise, many people would wait until they became sick before buying coverage. In short, the individual mandate is a necessary component of the effort by Congress to protect people from unaffordable health insurance premiums. And under the Constitution, Congress is entitled to "make all laws which shall be necessary" for carrying out its commerce clause and other specified powers. Thus, the court made it clear in the medical marijuana case (Raich v. Gonzales) that Congress may regulate in areas that might not ordinarily fall within the commerce clause power if the policy is part of a broad regulatory program that falls within the commerce clause power.

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