By Helen Wong, former president of the ACS student chapter at Georgetown Law
As the debate over health care reform continues, the question of whether an individual mandate to purchase health insurance is constitutional has been termed "the elephant in the room" by conservative pundits across the country. If so, this is definitely an elephant that has gotten significant attention. Bush administration attorneys, David Rivkin and Lee Casey, wrote not one, but two editorials in The Washington Post and The Wall Street Journal arguing that a health insurance mandate would exceed the power granted to Congress by the Constitution.
Opponents of the health care reform point to two main arguments for why such a mandate would be unconstitutional. First, they argue that Congress lacks constitutional authority to compel people to purchase health insurance. Second, they maintain that Congress lacks the power to levy a tax against those who do not purchase health insurance or that such a tax would be considered an "arbitrary and capricious taking under the Fifth Amendment."
But the opponents are wrong on both counts. Congress does have authority to pass a health insurance mandate under the Commerce Clause enumerated under Article 1, Section 8, of the Constitution. Since the 1930s, the Supreme Court has interpreted the Commerce Clause to mean that Congress has the authority to regulate activities that have a substantial effect on interstate commerce. "Substantial effect" can be found on individual decisions that, in the aggregate, would affect interstate commerce. In Wickard v. Filburn, Filburn had violated wheat production quotas because he was growing extra wheat for personal consumption. The Court found that his actions, though minimal, would affect interstate commerce because it would reduce the amount of wheat he would need to purchase on the open market. More recently in Gonzales v. Raich, the Supreme Court found that "Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce."
The relationship between health care and the economy is even stronger. Health care equipment, patient transfers and the sale of health insurance itself all have the potential to cross state lines and impact the local and national economy. And health care costs are not de minimis - an estimated $2.26 trillion was spent on health care in 2007, over $7000 per capita. These costs will continue to rise, reaching 19.5 percent of GDP by 2017. Everyone one of the 46 million uninsured Americans has an impact on this system.
Regardless, opponents of health care reform argue that unlike the active actions of growing marijuana or wheat, the activity regulated by the health insurance mandate is an inaction, namely the decision not to buy health care insurance. They point to cases such as United States v. Lopez and United States v. Morrison in which the court did not allow Congress to regulate non-economic activities of gun possession near schools and violence towards women. Further, Rivkin and Casey argue, when the uninsured do seek medical care, they pay full freight, "often at premium rates, thereby actually subsidizing insured Americans."
At the outset, their reliance on Lopez and Morrison is misplaced, as the Court did not allow regulation of active non-economic activity, but said nothing about regulating inactive economic activity. Choosing not to buy health care insurance is not an isolated act - everyone will need medical treatment at some point. While it is true that some uninsured will seek medical care at the "premium rate," the majority of uninsured do not seek medical care precisely because they wish to avoid paying this premium. Thus, they often lack preventive care and have more serious conditions once they are finally forced to seek care. These uninsured often go to hospital emergency rooms where hospitals are required by law to treat them regardless of their ability to pay. And often they cannot pay. Study after study has shown that hospitals do not just absorb these costs, they pass them on to the insured Americans that end up paying a higher premium for their health insurance plan.
Congress could levy a tax on those who do not purchase health insurance through its tax and spending power. Relying on the outdated, Bailey v. Drexel, Rivken and Casey argue that the Supreme Court held that Congress could not impose a "tax" to penalize conduct it could not also regulate under the commerce clause. Thus, Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause. But the Supreme Court has long since departed from that interpretation. In Marchetti v. United States, for example, the Court held that Congress had the authority to levy a tax against local gambling. The act of policing local gambling did not cross state lines, yet the Court allowed the statute to stand. It is a clear example of the court allowing Congress to tax an activity it could not regulate through commerce power.
Finally, the argument that taxing violators of the mandate can be considered a taking also lacks legal merit. Takings are about property and things. Levying a tax against those who do not purchase health insurance does not remove individuals from their possession without just compensation. It is merely a tax for public use and the Court repeatedly favored the federal power to tax, even if the revenue derived from the tax is negligible.
As Professor Erwin Chemerinsky stated, "since the 1930's, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it for Congress to determine this." The health care mandate would be no exception - there is no right to not have insurance and there is no constitutional limitation that prohibits Congress from applying a tax toward those who choose not to purchase it.
There is still too much to debate over health care reform before this country can get the bill it needs to provide decent care for Americans. We should not let a constitutionality issue that does not exist get in the way of a healthy exchange of ideas.