The Individual Mandate: An Unconstitutional Exercise of Congressional Power
…it is somewhat surprising that little attention has been paid to the critical legal question of whether Congress has the constitutional authority to require Americans to purchase a commodity from a private, for-profit corporation.
…A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.
…Article I, Section 8 of the Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Therefore, in order for Congress to have the authority to require Americans to purchase health insurance, the purchase of health insurance must constitute “commerce” within the meaning of the Commerce Clause. It does not.
In 1982, the Supreme Court declared that, in order for a commodity to be considered an article in commerce, it must be capable of being sold. Sporhase v. Nebraska,
458 U.S. 941 at 949 -- 950 (1982). While there is no doubt that the sale of health insurance by an insurer constitutes commerce, it does not follow that the purchase – or more precisely, the failure to purchase – health insurance by a consumer also constitutes commerce. Health insurance, once purchased by a consumer, is not capable of being further sold in commerce because there is no market for it; who would purchase a health insurance policy naming someone else as the insured?
…there is no market for health insurance benefits once the policy is issued. No one would buy my health insurance, because no one other than I can derive any benefit from it. Since there is no market, health insurance is not an article of commerce once issued. If it is not an article of commerce, Congress lacks authority under the Commerce Clause to require me to purchase it.
…For single-payer advocates, a very powerful argument is that, while the individual mandate to purchase private health insurance is unconstitutional, Congress can lawfully tax to support a government financed health insurance program. Article I empowers Congress to use its taxing powers in support of government programs that foster the public welfare; this is the constitutional authority for Social Security and Medicare. But to extend that authority to requiring Americans to purchase a private commodity raises profound civil liberties issues. If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it. The auto industry is collapsing? Forget Cash for Clunkers, just order Americans to buy cars or tax them if they don't. Obesity crisis? Order Americans to join health clubs, or tax them if they don't. If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses.
Sheldon H. Laskin
After Downing Street, December 20, 2009