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The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…
~ James Madison, Federalist 45
Last March, President Obama and the Democrats in Congress passed their landmark health care reform legislation. At the very core of their bill is an individual mandate that requires all American citizens to obtain government-approved health insurance. During a joint session of Congress on September 9, 2009, President Obama declared:
[U]nder my plan, individuals will be required to carry basic health insurance...
Now, less than a year after the bill was signed into law, that mandate--that requirement that all individuals purchase health insurance-- is coming under intense scrutiny. Critics of the reform claim that such a law is outside of the powers granted to Congress by the United States Constitution. Last August, citizens of the state of Missouri voted overwhelmingly in favor of a measure, Proposition C, which invalidated the mandate for all state residents. 20 other states have filed a lawsuit in a Florida federal court to have the law declared unconstitutional (they may soon be joined by a 21st--Ohio). And Attorney General Ken Cuccinelli has filed a separate suit against the law on behalf of the state of Virginia. He scored a major victory for opponents of the legislation this past December when a federal judge ruled that the mandate is outside of congressional authority stating:
A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product... The unchecked expansion of congressional power to the limits suggested by the [individual mandate] would invite unbridled exercise of federal police powers.
This judge's ruling, of course, will not be the last word on the constitutionality of the law. The individual mandate--and the entirety of the Democrats' health care legislation--will undoubtedly end up before the Supreme Court. But as it works its way through the American judicial system, the questions still remains: Is forcing Americans to buy insurance—at times against their will—within the authority granted to federal government by the Constitution?
This blog will be the first in a series of blogs that attempts to answer that question. Our examination will begin as all good examinations begin, by defining what it is that we mean to examine: What is the individual mandate and how will it be applied? From there, we will attempt to understand whether Congress should employ a loose reading or a strict textual reading of the Constitution when crafting legislation. Then we will look at how the founders understood the wording that they wrote into our nation's founding document and whether or not they would have viewed such a mandate as Constitutional. And we will conclude by examining the expansive case law that has brought us to our present day jurisprudence and look at whether or not today's understanding of the Constitution has been expanded enough to allow the federal government to mandate the purchase of health insurance.
Section 1: Defining “Individual Mandate on Health Insurance”
When attempting to define a phrase, it is often helpful to understand the meaning of the words that make it up. The word “individual” clearly means a single, distinct person. That means that the “mandate” will apply to individuals and not to groups such as those working for the same employer or living within the same household. Moreover, the 2009 Merriam-Webster Dictionary defines the word “mandate” as “an authoritative command.” Thus, an “individual mandate” is an authoritative command directed at individuals forcing them to take part in a certain activity. But what activity is the federal government “commanding” individuals to take part in?
According to analysis released by the nonpartisan Congressional Budget Office (CBO), H.R. 3962, the Affordable Health Care for America Act—which was the first bill passed in the House of Representatives—will “establish a mandate for most legal residents of the United States to obtain health insurance.” It goes on to specify that “The bill [will] require individuals to obtain acceptable health insurance coverage, as defined in the bill.” Similarly, a CBO report that analyzes the Patient Protection and Affordable Care Act—which was signed into law by President Obama on March 23rd, 2010—reveals, “The legislation [will] require individuals to obtain acceptable health insurance coverage, as defined in the legislation.”
Clearly, the government is “commanding” that individuals obtain “acceptable” health insurance. To enforce such a mandate, both pieces of legislation include a financial penalty paid to the IRS by individuals who choose not to obtain health insurance (see either letter). Almost every legal United States resident will be required to abide by such a mandate regardless of age, race, gender, or economic status. Thus, the phrase “individual mandate on health insurance” can be defined as “a command by the federal government that nearly every United States citizen obtain acceptable health insurance as defined by the government or be subject to a financial penalty.” Put even more simply, the government will force individuals to purchase a government approved product—health insurance—not as a consequence of any of their actions but merely because they exist.
Now that we have defined “individual mandate on health insurance,” we can ask: is a mandate on the purchase of health insurance constitutional? Before we can determine whether or not something is constitutional, however, we must know how the Constitution and the limitations that it holds on government should be read. Only by understanding how to view the document can we grasp the powers that it grants and the powers that it prohibits. Is the document meant to be read loosely with a heavy reliance on personal interpretation or is the meaning of the text finite and knowable?
In our next installment of this series of 8 blogs, we will examine how the Constitution should be read and which section--if any-- allows the federal government to mandate the purchase of a product.