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In the first 7 installments of this 8 part series examining the constitutionality of the health care mandate (Blog 1, Blog 2, Blog 3, Blog 4, Blog 5, Blog 6, Blog 7) we looked at the Commerce Clause through the lens of the founders and considered the case law that has expanded upon their original understanding of Commerce authority. To conclude our search, we must use all that we have seen to determine whether or not the government's individual mandate on health insurance is constitutional.
As we said in Blog 5:
The legitimate use of the Commerce Clause results in regulations that are best explained in the form of an “if, then” relationship. If an individual chooses to take part in interstate commerce, then he must follow certain guidelines. For the federal government to remain within the confines of its constitutionally allotted power, its actions must remain in a close relationship with individual action... But another essential aspect of the Commerce Clause is what it protects. The Commerce Clause ensures that the actions of individuals can exist outside of a relationship with government. An individual eats hamburgers not because the government forces him to but because he is hungry. As long as the government remains within the limitations set up by the Commerce Clause, individuals will be free to continue to do so.
A federal mandate on health insurance dramatically alters the relationship between government action and individual action. Under such a mandate, the “if, then” relationship will become a “because” relationship where an individual buys health insurance because the government tells him he must. Such a mandate forces every American to purchase a product—at times against their will—simply because they are alive. No action necessary. The purchase of health insurance will not be required to make regular the trade of goods between states. It will be required of nearly every individual in existence. Merely existing is not an economic activity. It does not constitute as trade between people of two or more separate states. Thus, when following a strict textual reading of the Constitution, the mandated purchase of health insurance is unconstitutional.
But that doesn't necessarily mean that the Court will strike down the mandate. In order to make its ruling, the Court will rely heavily on case law jurisprudence.
Section 9: Do Case Law Expansions Permit Congress to Mandate Insurance?
In the 222 years since the United States Constitution was first adopted, the Commerce Clause has been expanded and manipulated beyond recognition. Long gone are the days in which the Clause granted Congress the authority to make regular the process by which trade between the people of two or more separate states occurs and nothing more. It no longer holds the limitations that the founders assigned. In fact, it now holds few limitations at all. But even though it has been expanded far enough to grant Congress the authority to regulate the production of wheat cultivated on a personal farm for strictly personal use, it still does not afford Congress the power to place an individual mandate on the purchase of health insurance.
The simple fact is that the individual mandate is unprecedented in American history. Even with past expansions of the Commerce Clause, the federal government has never attempted to mandate that every American purchase a product. Furthermore, every past piece of legislation that the Clause has been expanded to accommodate has regulated or prohibited “activities.” They have regulated the “act” of transporting cattle or prohibited the “act” of growing too much wheat or the “act” of cultivating cannabis. As constitutional scholars David Rivkin and Lee Casey note, under an individual mandate on health insurance:
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the ‘production, distribution or consumption of commodities,’ but for no other reason than that people without health insurance exist.
There has never been a piece of legislation that forced an otherwise inactive individual to act merely because he is alive. The Supreme Court has never upheld legislation that forces an individual to grow more wheat than he intends or to cultivate cannabis when he has no intention of doing so. Similarly, the Court will not permit Congress the authority to force people to purchase a product that they had no intention of buying. Rivkin and Casey continue:
The federal government does not have the power to regulate Americans simply because they are there.
And even in the most expansive of Supreme Court rulings, the Court has made it clear that the Commerce Clause still holds some limitations on congressional power; a mandate on health insurance would eliminate its limitations entirely.
Section 10: Expansions Do Not Permit Congress to Mandate Insurance
In the three decisions that we have examined and, indeed, in every other Supreme Court decision, the Court has been careful to make clear that the powers of Congress are limited and enumerated. They cannot be expanded beyond the bounds of the Constitution—even if one views constitutional bounds as broad and ambiguous. In Gibbons, for example, Marshall notes that regulation of “exclusively internal commerce of a State” is to be left up to that state. Currently, federal law makes it impossible to purchase health insurance across state lines. Individuals who buy their own health insurance can only purchase the mandate laden insurance available in their particular state. Because the purchase and sale of health insurance is “exclusively internal commerce of a State,” the Court that decided Gibbons would find the regulation of it unconstitutional.
Furthermore, when defining “commerce” in the Gibbons case, Marshall writes:
All America understands, and has uniformly understood, the word ‘commerce’ to comprehend navigation.
By defining what activities fall within the realm of “commerce,” Marshall makes clear that other activities—and other states of being—exist outside of the word “commerce.” Navigation is a form of commerce. Existence is not.
Marshall defines commerce as “intercourse.” While one cannot be in a state of intercourse without also being in a state of existence, one can certainly exist without engaging in any form of intercourse. It is not difficult to image a situation in which an individual lives in seclusion, sheltered from others. A federal mandate on health insurance would apply even to an individual partaking in no form of “intercourse” with others. Therefore, by virtue of the definition provided Marshall, such a mandate is unconstitutional.
Similarly, in Court’s opinion for Wickard, Justice Jackson writes:
Thus, the penalty was contingent upon an act which appellee committed not before, but after, the enactment of the statute, and, had he chosen to cut his excess and cure it or feed it as hay, or to reap and feed it with the head and straw together, no penalty would have been demanded… Only when he threshed, and thereby made it a part of the bulk of wheat overhanging the market, did he become subject to penalty. (Emphasis mine)
Again, the Court makes it clear that the commerce powers of the federal government are “contingent” upon the actions of the individual. The federal government was able to regulate and penalize Filburn only after and because of his actions. Congress would not have had the power to regulate Filburn if he had never grown wheat in the first place. His actions lead to government action. And just as the government does not possess the power to force Filburn to grow wheat if he has no intention of growing it, so too does the government lack the power to force individuals to purchase health insurance if they have no desire to obtain it.
Even in the most recent example of the expansion of Commerce Clause power, the Court has demonstrated that there are still some restraints on Congress’s authority to regulate. In the 2005 case of Gonzales v. Raich, Justice Stevens make note of two recent cases--United States v. Lopez (1995) and United States v. Morrison (2000)--that struck down federal commerce regulations. The difference between the decision reached in Gonzales and the decisions reached in the other two (see Blog 7) is that, unlike in Gonzales, the others did not regulate “economic activities.” Stevens defines “economics” as “the production, distribution, and consumption of commodities” and goes on to argue that:
Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.
In other words, restricting the cultivation of cannabis passed the “rational basis” test for federal regulation because it prohibits an “economic activity” that it can be reasonably argued may affect interstate commerce.
However, as Constitutional Lawyer David Rivkin argued in a 2009 debate with Jonathan Turley, existing is not an “economic activity.” It is not an activity at all. And although existing can be shown to have an effect on interstate commerce, it cannot be regulated by the federal government. As Rivkin notes, if Congress does possess the authority to mandate the purchase of health insurance, then it also possesses the authority to mandate that individuals:
...join a health club, or exercise regularly, or even eat… vegetables.
Case law has yet to expand congressional powers to such a point. In fact, excluding Gonzales, recent case law has narrowed—if only slightly—federal commerce powers.
Section 10: Mandating the purchase of insurance is unconstitutional
To review, when examining a law, the first question that one must ask himself is by what authority is the government enacting such legislation? The federal government receives its power from the United States Constitution. The Constitution was written to both grant the government the authority to act and to protect the natural rights of citizens. To the extent that a government protects the natural rights of its citizens, it operates with legitimate power. If a government no longer protects the natural rights of citizens or if it imposes upon such rights, it operates with illegitimate power. Thus, as long as the federal government adheres to a strictly textual reading of the Constitution, it acts legitimately.
When attempting to see if an individual mandate on health insurance—a command by the federal government that nearly every living United States citizen obtain acceptable health insurance as defined by the government—is constitutional according to a strict reading of the text, it becomes clear that it is not. Under the Commerce Clause, the federal government is granted the authority to make regular the process by which trade between the people of two or more separate states occurs. A federal mandate on health insurance does not make regular the trade of goods between states. It is a command that nearly every person in America purchase a product. Merely existing is not an economic activity. It does not constitute as trade between people of two or more separate states and thus it is unconstitutional to force Americans to buy a health insurance simply because they exist.
But case law has expanded the Commerce Clause beyond such “originalist” bounds and before a piece of legislation can truly be called unconstitutional it must be reviewed by the Supreme Court. Even when viewing the Democrats' legislation through the lens of the most drastic of expansions to congressional authority, mandated insurance will not be up held as constitutional. Throughout its history, the Court has held that the Commerce Clause grants Congress the ability to regulate “economic activity” or at very least activities that have substantial affect on economic activities. A federal mandate on insurance regulates existence. Being alive is not an “economic activity” or even an “activity” at all. Therefore, it remains outside of the regulatory powers granted to Congress by the Constitution.
No matter how we look at it, President Obama's individual mandate on health insurance is unconstitutional. And barring the abolition of the United States Constitution, the Supreme Court will opt to protect the natural rights of individuals by striking it down as such.