Last week, the House Judiciary Committee held a hearing on the constitutionality of the individual mandate. The mandate has been declared unconstitutional by federal courts in Virginia and Florida, and appeals are pending in those cases.
The committee heard from three legal experts: Virginia Attorney General Ken Cuccinelli, Duke University law professor Walter Dellinger, and Georgetown University law professor Randy Barnett. Testimony touched on several aspects of the individual mandate, which requires Americans to purchase a level of coverage deemed appropriate by the Department of Health and Human Services or else pay a penalty.
A main focus of the discussion was how allowing the individual mandate to stand would change the powers of Congress. Proponents of Obamacare claimed the power to require all citizens to purchase insurance is constitutional under the Commerce Clause, which allows Congress to regulate interstate economic activity. But since the mandate actually regulates economic inactivity, it is unprecedented.
Said Cuccinelli, “The claimed power exceeds Congress’s enumerated powers because it lacks any principled limit and is tantamount to a national police power—that is, the power to legislate on matters of health, safety and welfare that was considered part of the reserve powers retained by the States at the time of the Founding.”
Dellinger, who served as Acting Solicitor General during the Clinton Administration, argued that the individual mandate is constitutional since it is necessary for the new insurance regulations included in Obamacare to operate successfully. Furthermore, he pointed to the uniqueness of the health care market, stating, “No one can ever be certain he or she will never receive medical treatment. Health care can involve very expensive medical treatments that are often provided without regard to one’s ability to pay and whose cost for treating the uninsured is often transferred to other Americans. These qualities are found in no other markets.”
But this argument doesn’t hold up. Barnett said, “While the government could try to condition the activity of delivering health care on patients having previously purchased insurance, in the Affordable Care Act it did not do this. The fact that most Americans will seek health care at some point or another does not convert their failure to obtain insurance from inactivity to activity and so does not convert the mandate to buy insurance into a regulation of activity.”
Moreover, Barnett points out that without a constitutional principle to differentiate health care mandates from other economic mandates, the fact that the health care market may (for the sake of argument) be different from every other market would not restrict Congress’s future power to apply the same reasoning to other markets without considering whether they are similar to or different from health care. According to Barnett, “once the power to conscript Americans to enter into contractual relations with private companies is accepted here, it will be accepted for any circumstances that Congress deems it convenient to its regulation of the national economy.”
This would, in effect, remove the limits on congressional power and make it equal in scope to the powers of the states. This would not only fundamentally alter the nature of the relationship between the federal government, the states, and U.S. citizens, but it is, as Barnett reminds us, “a proposition that has always been rejected by the Supreme Court.”
Heritage legal scholars have outlined extensively why the individual mandate is unconstitutional. Read their work here.
