Head conspirator Eugene Volokh and I will be on a panel today at the Heritage Foundation at 12:30pm discussing the constitutionality of the proposed individual health insurance mandate. Senator Orrin Hatch will deliver opening remarks. I will question the constitutionality of such a mandate; I expect Eugene to be skeptical that a constitutional challenge would succeed. Details of the event are here. Here is how the event is described:
Can Congress require all Americans to buy a new Buick every year or pay a tax equivalent to the price of a used LeSabre? Some members of Congress claim that power in the health care debate. Indeed, all the leading health care bills being debated in Congress require Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated to cost up to $15,000/year for a typical family. Such a purchase mandate has never been attempted. The purpose of this forced purchase, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize the coverage for others. Sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or through the gimmick of unconstitutional tax penalties. The sponsors have struggled to analogize and justify the mandate under existing federal laws and court decisions, but those efforts all fail under serious scrutiny. Senator Orrin Hatch and a growing number of Congressmen argue the mandate is unconstitutional as a matter of first principles and under any reasonable reading of constitutional precedents, and it is very unlikely the Supreme Court would devise or extend current constitutional doctrines to save them.
The Heritage Foundation has assembled a panel of distinguished constitutional scholars to discuss the issue and its ramifications for the larger bill. Professor Barnett, who argued the most relevant case before the Supreme Court, will explain why the individual mandate is unconstitutional. Professor Volokh will probe that view to see if there is some way that the Congress or the courts might be able to save it. Join us for a most interesting and important debate.
I have co-authored a “legal memorandum” for Heritage entitled “Why the Personal Mandate to Buy Health Insurance is Unconstitutional and Unprecedented.” I do not see a link to it yet, but it may be there and I cannot find it. In this memo, we address three ways of assessing the constitutionality of a mandate to buy health insurance from a private company:
1. First Principles or original meaning. (Natch).
2. Supreme Court precedent (Wickard & Raich).
3. Predicting the Justices (what Orin likes to do).
We conclude that this claim of power is, quite obviously, beyond the original public meaning of the enumerated powers scheme. It is also well beyond any previous Commerce Clause decision by the Supreme Court, including Wickard v. Filburn and Gonzales v. Raich. And finally, we do not think there are five Justices who will want to extend the commerce powers of Congress beyond Raich, especially for a program that may well be very unpopular politically by the time a challenge reaches the Court. Never in its history has the Court affirmed that Congress has a plenary police power, and it is not clear how it could limit a doctrine upholding this claim of power.
I realize this may seem counter-intuitive to many readers, but consider this. Anything that has never been done before is literally unprecedented, which means it lacks any precedent. So the question is, will the Supreme Court want to authorize this new extension of congressional power in light of the fact that it violates the first principles it affirmed in Lopez and Morrison? Or, to the contrary, will it want to take the opportunity reaffirm that these principles still apply, notwithstanding Raich, in a case with no further implications beyond the statute in question? Step right up and place your bets.
Oh yes, and for those who care about constitutional law: Raich involved an “as-applied” challenge wherein the Court refused to carve out a subset (marijuana produced and possessed for medical purposes as authorized by state law) of a larger class of activities (all production, distribution and possession of marijuana) where Congress deemed it essential to include the subclass as part of its larger regulatory scheme. A challenge to the individual health insurance mandate will be a “facial” challenge, as were Lopez (possession of guns within 1000 feet of a school) and Morrison (gender motivated violence), that will take the “class of activities” to be “regulated” as given by the statute to assess whether it is within the power of Congress to reach this class.
So here is the kicker: the “class of activities” is actually the inactivity of not participating in the market for insurance. In other words, it is doing nothing. So five Justices would have to find that Congress may compel a person to enter into an economic transaction under its power to “regulate commerce . . . among the several states.” I suppose the safe money is ALWAYS that the Court will uphold a statute. But even here? Unless the Congress takes seriously its duty to independently consider the constitutionality of its exercise of power (rather than merely predict how the Supreme Court with rule), it now looks like we will see.
UPDATE: I decided to change the title of this post to let readers know what it was primarily about.
UPDATE II: Our paper is now available here.