Individual mandate is constitutional

Our view: Attorneys general mount a misguided attack on health care reform

March 24, 2010

For a party that claims not to care for lawsuits interfering with medical care, it didn't take Republicans long to take to the courts to challenge health care reform. The thrust of the litigation filed Tuesday in Florida and Virginia is that requiring people to purchase health insurance is unconstitutional.

Yet again, conservatives are falling on a 10th Amendment "states' rights" claim when they don't care for progressive actions at the federal level. The argument is as old as the Civil War and is commonly trotted out when public outrage (think the 1964 Civil Rights Act) is at its highest.

The reasoning put forward by attorneys general from 14 states -- all Republicans except for James Caldwell of Louisiana -- is that the new law's requirement that people buy health insurance is outside the government's Commerce Clause authority.

Or, put more simply: How can the government tell people they have to buy something? One could no more imagine -- or at least so the argument goes -- Washington telling everyone to buy a car or a new suit, or even something that might benefit their health such as a treadmill or a Weight Watchers membership. But that's not how the law works. The "mandate" in question amounts to little more than a change in tax policy that penalizes those U.S. citizens and legal residents who can afford a minimum level of health insurance coverage but fail to purchase it.

It's also filled with exemptions. If you are like 58 percent of Americans and already have coverage, you aren't affected. Same for the 32 percent who are covered by Medicare or Medicaid or some other government program. People suffering financial hardship can opt out, too.

The government has been using tax incentives in such a manner for generations. So if the attorneys general want to rid the federal government of such "mandates," they might as well go after tax credits directed toward homeownership, charitable contributions and retirement savings, too.

Better yet, the attorneys general ought to pay heed to the most comparable federal mandates -- Social Security and Medicare. Can one imagine the federal government forcing people to pay for retirement or medical insurance for their senior years? Well, yes. The only difference here is that people have the additional freedom of purchasing their coverage from the private sector.

Conservatives may not like Social Security or Medicare, but even the current rightward-tilting Supreme Court is unlikely to roll back federal authority in such matters to the pre-New Deal times.

Indeed, the attorneys general lawsuit has so little support in contemporary case law or from legal scholars that the whole enterprise smacks of a partisan attack launched primarily for the benefit of Fox News, tea party supporters and campaign fundraising.

That, of course, would be par for the course. But as President Barack Obama noted when he signed the measure into law Tuesday, "the overheated rhetoric over reform will finally confront the reality of reform." And the reality is, health care reform is lawful and here to stay.

Readers respond

You debate the meaning of the word "force" or "compel" by comparatively minimizing the penalty for failure to comply.

While taxes have long been used to influence behavior, never before has there been such an explicit requirement to buy such a specific product or service from a private, for-profit corporation. It is significantly unprecedented. Mortgages and charitable contributions are not even in the same ZIP Code as this.

The nearest precedent is car insurance, but that has three key differences: Car insurance is mandated by the states; driving a car is an option; and the insurance required is liability insurance, which protects others, not yourself.

To deem this constitutional is to deem the Commerce Clause limitless and the Supremacy Clause absolute.

Josh Dowlut

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