Argument: Commerce clause gives power to mandate health insurance

Issue Report: Constitutionality of US health insurance mandates


Mark Hall. “Is it unconstitutional to mandate health insurance?” August 25th, 2009: “Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.”

David Orentlicher. “An Individual Mandate to Purchase Health Care Insurance Is Constitutional.” Huffington Post. December 14, 2009: “Under the commerce clause, Congress has the power to regulate interstate commerce, and the health care insurance industry clearly falls within the Supreme Court’s understanding of interstate commerce.

Critics of an individual mandate cite recent Supreme Court cases in which the Court has limited the commerce clause power. But those cases (Lopez and Morrison) involved regulation of non-economic activity. The individual mandate regulates the relationship between sellers and buyers of health care insurance. Moreover, the Court was concerned in Lopez and Morrison with efforts by Congress to intrude into areas that are properly regulated by state governments and thereby to upset the balance of power between the federal and state governments. In contrast, congressional regulation of the health care industry does not violate state prerogatives. To be sure, much regulation of insurance occurs at the state level. But that’s because Congress has chosen by statute to defer to state regulation. The Constitution does not prevent Congress from revoking its statutory grants to state governments.”

Hall MA. O’Neill. “The Constitutionality of Mandates to Purchase Health Insurance.” Institute for National and Global Health Law, Georgetown Law. Robert Wood Johnson Foundation. February 2009: “Congress has the authority to enact a health insurance mandate under the Commerce Clause of the Constitution, and via its authority to tax and spend for the general welfare.”

“The Inevitable Conservative Argument that Health Care Reform is Unconstitutional.” Balkanization. August 29, 2009: “interstate commerce definitely does include the insurance industry and that regulations covering that industry — even regulations designed to try to eliminate it, as some pro-reform purists demand — are well within the historic scope of its application.”

Ohio Attorney General Richard COrdray and Iowa’s attorney general, Tom Miller. “Why we won’t file states’ rights suits.” Politico. April 2nd, 2010: “Nobody can seriously argue that the health care industry operates only in “intrastate” commerce and that the mandate provisions in this bill cannot be effectively disentangled from the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system.”

“Individual Health Care Insurance Mandate Debate.” The Federalist Society Online Debate Series. November 3, 2009: “There is no constitutional problem with Congress requiring that individuals purchase health care or pay a penalty. There is much to debate over health care reform and how to achieve it, but I have no doubt that the proposals would be constitutional.
The constitutional objection that I have heard most often is that Congress lacks the authority under Article I of the Constitution to do this. But such a mandate clearly falls within the scope of Congress’s authority to regulate commerce among the states.

Over many cases, the Supreme Court has held that Congress can regulate economic activities that taken cumulatively across the country have a substantial effect on interstate commerce. Purchasing health insurance is an economic transaction. Taken cumulatively those who do this, or who don’t do it, have a substantial effect on interstate commerce.

In 2007, healthcare expenditures amounted to $2.2 trillion, or $7,421 a person, and accounted for 16.2% of the gross domestic product. These statistics leave no doubt that regulating health insurance is regulating interstate commerce.

Those who argue that this is unconstitutional maintain that those not purchasing health insurance, by definition, are not part of interstate commerce. There are numerous flaws with this argument. First, Congress can regulate activities that themselves are not part of interstate commerce if they have a substantial effect on interstate commerce. For example, in Wickard v. Filburn, the Supreme Court held that Congress could regulate wheat that farmers grew for their own home consumption. More recently in Gonzales v. Raich, the Court ruled that Congress could prohibit cultivating and possessing small amounts of marijuana for personal medicinal use. Even though the individuals were not personally engaged in commerce, the matter still fit within the commerce power.

Second, not engaging in economic transactions is a form of commercial behavior that Congress can regulate. The Supreme Court held that Congress could require that hotels and restaurants provide services to African-Americans. Their refusal to engage in commerce still was deemed to be within the scope of Congress’s commerce clause power.

Third, the likelihood is that everyone will require medical care at some point. An uninsured person in an automobile accident will be taken to the emergency room for treatment. An uninsured person with a communicable disease will be treated. Congress can ensure that there is an adequate fund to pay for everyone’s medical needs.

In other words, the health care system is part of interstate commerce. Providing care for all unquestionably has a substantial economic effect. Congress, then, can use its authority under the necessary and proper clause to make sure that the system that it is creating is viable and capable of providing health care for all.

[…] It is firmly established that Congress may regulate economic activities that have a substantial effect on interstate commerce. Purchasing insurance, by definition, is economic activity. Congress mandating that individuals have insurance is obviously regulating economic activity. There is no denial that this has a substantial effect on interstate commerce. Once this is established, and I cannot imagine how it can be disputed, then Congress can enforce this under the necessary and proper clause by penalizing those who violate the mandate. Under current and long-standing constitutional doctrines it is not a close question that this is within the scope of Congress’s commerce clause power.”