The New Health Dialogue

Most people want to have health insurance -- and many people desperately need it. That's part of what's driving the push for health care reform legislation. But as more Americans realize that health care reform means that they MUST purchase health insurance, more people are asking whether this "individual mandate" is constitutional. Over and over again, we hear that it is and we shouldn't worry our wonky heads over this relatively non-controversial issue. (I'm a lawyer by the way so my head is both wonky and legalistic -- I actually like thinking about things like the constitutionality of mandates).

Tim Noah just wrote a well-researched piece in Slate about this issue. Tim found that an individual mandate is unprecedented -- which is what we concluded when we started asking around and thinking about this. Whenever you have the federal government issuing a brand new edict you're going to have controversy (think about the laws governing voting and drinking ages...). But this is the first time that the decree is contingent on just being alive and an American -- it is not tied to a privilege (owning a car) or doing something wrong (thieves go to jail).

According to Noah and others, the legal scholars' analysis of whether the "must get health insurance" proclamation is constitutional boils down to how the provision is drafted. If it is drafted under the tax and spend powers, no problema. The federal government can impose a tax on individuals who choose not to purchase insurance and be well within its powers offered by the Constitution. (Article I, Section 8, Clause 1 is known as the tax and spending clause of the Constitution: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.) So, if you stay within the confines of the tax and spend powers, it is less a question of a mandate than it is about whether Congress has the power to enforce it . It seems clear that it does.

The controversy, if there even is one anymore, is whether an individual mandate can be considered an unconstitutional "taking" by the federal government. This is really a property law concept, where the government seizes personal property for a public use but fails to fairly compensate the owner. It seems, though, that the constitutional scholars agree that forcing individuals to pay a private insurance company a premium to purchase private insurance is not taking money or property at all. It is mandating a bargained-for exchange -- money for health benefit coverage. So, again, it is not a "taking" -- the only government imposition here, for constitutional purposes, is a tax penalty for the failure to purchase insurance. Taxes may not be popular, but they are SO constitutional.