Why The Individual Mandate, Whether Wise Or Not, Is Constitutional
In light of the Supreme Court arguments going on right now to determine the fate of Obamacare, I wanted to rehash my thoughts on why the individual mandate is constitutional, edited slightly for clarity. Keep in mind that these are intensely abbreviated remarks, intended only to get the general ideas across for general consumption.
The following [came mostly from] from an e-mail exchange with a couple colleagues of mine which occurred on the heels of news that the Sixth Circuit has upheld the constitutionality of the Individual Mandate in the PPACA. My colleagues’ concern rests on two factors: a) the Commerce Clause becomes meaningless if Congress can regulate inactivity as well as activity, and b) if Congress can force you to buy health insurance, they can theoretically force you to buy anything.
I address these concerns herein:
1. To start, it’s hard to argue, as a practical matter, that an industry which takes up 1/6 of our economy does not qualify as “interstate commerce” within the meaning of the Commerce Clause. There are probably trillions of transactions that take place across state lines involving both health insurance and healthcare delivery every year. We’re not talking about a situation like that in Gonzalez v. Raich involving criminalized Cannabis which never crossed state lines. There is clearly Interstate Commerce going on here. With that being said, I think we can all agree that the right to “regulate” interstate commerce shouldn’t mean “whatever the hell Congress want to do.” The question is what exactly the first continental Congress meant by the word “regulate,” which leads me to:
Intentions Of The Founders
2. I draw your attention to “An Act For The Relief Of Sick And Disabled Seamen, 1798.”
Not a decade after the ink dried on the Constitution, Congress passed, and John Adams signed, a law which mandated that privately employed sailors be required to purchase health insurance. The bill was structured such that the cost of insurance could be deducted from a sailor’s salary by their employer. But in essence, the nature of the coercion was the same: A Congress and White House populated by most of the original Founding Fathers passed a law that mandated a certain class of private citizens to purchase health insurance. The fact that the men who wrote the Commerce Clause felt this legislation was compatible with the Clause itself suggests that they did not see the sort of conflict with the Commerce Clause that has been raised by critics of the Individual Mandate. The form of the 1798 mandate was different, but the nature of the coercion was the same. The government was forcing private citizens to purchase a product that in many cases, they would not have purchased voluntarily. Which brings me to:
The Nature of State Coercion: Mandates vs. Tax-for-services
3. If the Mandate is unconstitutional, then I don’t see how, philosophically speaking, Medicare, Medicaid, Social Security, or really any tax at all is Constitutional. A mandate to purchase goods on the open market is a less coercive than a tax paid in return for a service. That’s because tax-for-service arrangements affect two spheres of freedom, while mandates only affect one.
When the government mandates you to buy something, it only affects one sphere of freedom: they are removing your freedom to choose *not* to buy it, but they are not removing the freedom to choose *where* to buy it. You still have choice among providers of that service in the free market.
But when the government taxes you in return for a service, they are removing two spheres of freedom: the freedom to decide *not* to purchase that service, and also the freedom to decide *from where* to purchase that service (i.e. you have to get it from the government). Because taxation-for-service restricts both these freedoms, taxation-for-service is a more coercive exercise of state power than simply mandating you to purchase something in the free market.
This logic affects a whole host of government programs that are currently well-established, and have withstood constitutional scrutiny. Social Security doesn’t give you a choice of Financial Managers: you are compelled to use the government as the manager of your SS retirement money, vis-a-vis the Social Security Trust Fund. Nor does Medicare or Medicaid give you a choice of insurers.* Being insured by Medicare means being insured by the government; take it or leave it. The Individual Mandate, on the other hand, leaves this choice to the individual.
Also: if the Individual Mandate is ruled unconstitutional, but Social Security and Medicare are left intact, what does that mean? Why couldn’t the government then accomplish the exact same thing as the Individual Mandate by simply taxing people and purchasing private insurance on their behalf? Surely this would be a more coercive exercise of authority than forcing people to buy insurance without a government middleman. But the legal theory upon which opposition to the mandate rests permits this to occur, if aimed only at the “stream of commerce,” and not Congress’s power to tax and provide services therefor.
In short: Telling me I have to buy something is one thing. Telling I have to buy something AND that I can only buy it from one source (i.e. the government) is another thing entirely. The mandate falls into the first category. Taxation-for-services (i.e. medicare, social security, etc) falls into the second.
So at this point, the obvious question is: “if the government can force me to buy health insurance, then what can’t the government force me to buy?” I think you can respond to to this by asking another question in return: what services can’t the state levy a tax for in order to provide as a service to the public? If the government can force you to give them money out of your paycheck, to pay for something they provide to you whether you want it or not, it hardly makes sense that they can’t accomplish the same result by giving the taxpayer the freedom to choose their own service provider through a mandate. Taxation-and-spending forces you to buy from the government and no one else. Mandates, on the other hand, allow you the freedom to select a merchant of your own choosing. The former is, by definition, a more coercive and intrusive exercise of government power than the latter.
What follows from this? If the mandate is unconstitutional, then the 16th Amendment literally rests on nothing more robust than the paper it was written on. It is essentially a meaningless proclamation that grants the government no real authority, or alternatively, an authority that rests on a flippant, absurd contradiction.
Either the mandate is constitutional, or taxation itself rests on a legal philosophical absurdity: namely, that governments can tax and provide services in return (thus restricting both what you buy and who you buy it from); but not, alternatively, simply mandate a purchase (thus restricting what to buy, but not who to buy it from). If that is the case, then we live in a strange country indeed.
*Medicare Advantage notwithstanding!