There has been discussion of the constitutionality of the new Obama health care plan, especially the requirement that, starting in 2014, individuals must buy health insurance. (If they don’t, they have to pay a penalty, which the law calls a tax.) Supporters of the plan think that this is pretty much a no-brainer. They probably would not have even thought about it if some opponents had not raised the issue. Supporters of the plan say the commerce clause in Article I of the Constitution (which gives Congress the power "[t]o regulate commerce … among the several states") allows Congress to require people to buy health insurance. Not having health insurance, and all that results from not having insurance if one gets sick or requires hospitalization, impacts interstate commerce.* As a back-up, supporters rely on the taxing power, though that may be a stretch since the tax here is not the purpose of the plan but merely an enforcement mechanism.
Many people do not understand what the question of the constitutionally of the mandate to buy health insurance is all about. The idea that there are limits on the power of the federal government, other than those in the Bill of Rights, is not something they think about. Given all that the federal government does these days, I can understand why some people think that way. After all, the federal government effectively sets certain speed limits on our highways and the rules for what constitutes drunk driving. (If you don’t follow the federal government’s rules, your share of federal highway monies is reduced.)
There have been a couple of recent Supreme Court decisions that indicated there is some limit on what Congress can do. For example, in United States v. Lopez (1995), the U.S. Supreme Court invalidated a federal law which prohibited an individual from possessing a firearm in a school zone. But when you think of George W. Bush’s "No Child Left Behind" law and the increasing involvement of the federal government in elementary and secondary education, you can see why the concept of limits on the power of the federal government, other than in the Bill of Rights, doesn’t resonate.
Personally, I am of two minds on this question. First, as I have mentioned in posts on the "No Child Left Behind" law (here and here), I believe in federalism. I think there are things the federal government should do and there are things the federal government should not do. Also, unlike many people today, I think we would be better off if the courts interpreted Article I of the Constitution (which deals with Congress’ powers) as setting some limits on the power of Congress and the federal government. It is interesting to think back to the late 18th century. At that point many people, including James Madison, did not think the Bill of Rights was necessary. In their view, the limits on the powers of the federal government set out in the Constitution were enough to protect us. The federal government was a government of limited powers. We did not need the Bill of Rights.
Obviously, things have changed. Today we need the Bill of Rights. But I like the concept of parts of the Constitution, other than just the Bill of Rights, imposing some limits on the powers of the federal government, too. I think that is a protection for all people.
If I were looking at the Obama health care plan from the point of view of someone who believes in the original concept of a government of limited powers, I would have a problem trying to figure out how a requirement that people buy health insurance fits within the powers granted to the federal government. The argument about it having an effect on interstate commerce wouldn't seem to work. If an individual person not having health insurance affects interstate commerce, then everything affects interstate commerce. (This is not to say that the federal government can’t do anything about health care. The federal government probably could set up a national health care plan and levy taxes to pay for it, but that is not what is being done here.)
But, while I have doubts have the constitutionality of the Obama plan**, I am not sure I would want the Supreme Court to hold it unconstitutional, especially in a 5-4 decision. Given the President’s reaction to the Supreme Court decision in Citizens United v. Federal Election Commission (here and here), the blow-up against a Supreme Court that invalidated a key part of the Obama health care plan, is not something I want to think about. It is the job of the Supreme Court to apply the Constitution, all of the Constitution (not just the Bill of Rights), and I want a Supreme Court that stands up for our rights and for limited government even when it is unpopular to do so. But overturning a portion of President Obama’s health care plan, could create a constitutional crisis of the first order. I am not sure that is a crisis I want to face.
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* Remember, in 1942 the Supreme Court held, in Wickard v. Filburn, that Congress could regulate even a small amount of wheat that a farmer grew for his own use because of the effect the wheat could have on interstate commerce.
** I say "I have doubts" because I don’t know enough about the state of the law to have a firm opinion.
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