Some Tentative Thoughts on the Constitutionality of the Individual Mandate Under Current Supreme Court Doctrine

I haven’t blogged any detailed thoughts on the constitutionality of the individual mandate, as I’m not an expert in the Commerce Clause or the Necessary and Proper Clause. But I’ve been pondering some of the issues, and I have some tentative thoughts on the constitutionality of the mandate based on current Supreme Court doctrine that I wanted to put out there for responses. So let me put out the tentative argument, and then readers can then feel free to throw tomatoes, claim “Fraud!”, cite Bingham, allege bad faith, and make all the other helpful contributions we see in VC comment threads. I’ll make the argument in two parts: First, the constitutionality of the ends of the legislation, and second, the constitutionality of the means of the legislation.

First, the ends. Health care accounts for about 17% of the entire United States economy, and the purpose of health care reform was to regulate that market in various ways to expand coverage, lower costs, etc. Thus, whether the new health care reform is a good idea or a bad idea, smart or dumb, it is legislation designed to regulate a large chunk of the United States economy. That large chunk of the United States economy is a complex and sprawling web of interstate commerce. Thus the goal of the health care reform package — not the means, at this stage, but the goal — was to regulate interstate commerce as permitted under Article I, Section VIII. And that’s true of the individual mandate specifically: Love it or hate it, the goal of it is to influence decisions about buying health care services that are in interstate commerce.

Second, the means. The next question is whether Congress’s choice of the individual mandate counts as “necessary and proper for carrying into Execution the foregoing Power[]” to regulate interstate commerce, such that Congress’s means of carrying out its power is constitutionally legitimate. This is governed by cases such as last Term’s decision in United States v. Comstock, the recent decision in Sabri v. United States, and McCulloch v. Maryland. Under these cases, as summarized earlier this year in Comstock, “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. . . . [T]he relevant inquiry is simply whether the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power.” That’s a very deferential standard, for better or worse. As the Supreme Court stated just a few months ago in Comstock:

We have . . . recognized that the Constitution addresses the choice of means [of carrying out enumerated powers] primarily to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.

Thus under current Supreme Court doctrine, the constitutional issue raised by the individual mandate is only whether an individual mandate for health insurance is “really calculated” to regulate interstate commerce — not whether the actual conduct prohibited by the mandate is itself interstate commerce.

As I’ve blogged before, I don’t happen to support the individual mandate as a policy matter. But if I’m right that this is the standard, it seems to me that the individual mandate was “really calculated” to regulate interstate commerce: As I understand it, the basic idea was to stop people from burdening the health care system with the costs of emergency care that resulted when people opted out of health insurance. Whether that was wise or not, it’s a genuine effort to regulate interstate commerce. It therefore would seem to be constitutional under the deferential standard of current Supreme Court doctrine on the Necessary and Proper Clause.

That’s the tentative argument, anyway. What’s wrong with it? Please note that I am asking for answers of what is wrong with this analysis under current Supreme Court doctrine, not the doctrine that once existed or should have existed. Many thanks.

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