Home > healthcare > The Individual Mandate: Unconstitutional in 1781

The Individual Mandate: Unconstitutional in 1781

What is so extreme about the individual mandate? Somehow huge mandatory government interventions like medicare and social security survive most conservatives’ “literal” reading of the constitution, but an unenforceable fine for not buying health insurance establishes an unfathomable expansion of government authority. It’s clear that this seasonal crop of literalists are just constitutionalists of convenience – they don’t like Obamacare ipso facto it’s unconstitutional.

Who knows, I’m not a lawyer either so I’m probably practicing a little motivated reasoning myself. But the case for constitutionality seems so simple to me that unless your committed to an absurdly strict reading, you should accept that Obamacare should stand.

Where in the Constitution…?

Anyone asking a version of the above question and looking for precise written permission for a Congressional power is arguing about the wrong document. The Articles of Confederation limited Congress to the powers it “expressly delegated,” but when the Founders drafted the new Constitution the Anti-Federalists lost. The new document dropped the rigid wording and allowed Congress to pass laws that flow reasonably from the listed powers. More exactly, Congress may enact regulations that are “necessary and proper” to execute the Constitutional powers such as regulating commerce.

Is the healthcare market commerce?

To ask the question is to answer it. The healthcare market for insurance is obviously commerce. I’m not sure how that is even in dispute. Congress recognized that many citizens who want to buy insurance can’t, so made a regulation that forces insurance providers to cover people with pre-existing conditions. Most of the opponents of the individual mandate accept the premise that Congress can and should pass a regulation that prohibits pre-existing condition exclusions in insurance plans.

Is the individual mandate “necessary and proper?”

If you accept that Congress can regulate the insurance and can make it illegal for healthcare companies to deny coverage to those with pre-existing conditions, than mandating that people should buy health insurance or pay a penalty is a “necessary and proper” regulation to execute the goal of coverage. Without the mandate, insurance companies could not reasonably cover enrollees with pre-existing conditions because of adverse selection and free-riders who would just jump into insurance once they got sick. Without the healthier people in the risk pool, insurance doesn’t work. Imagine if you could buy car insurance after you got in an accident.

In Massachusetts, only once Mitt Romney’s individual mandate went into effect did the healthier citizens broaden the risk pool.

As you can see, when the mandate became “fully operational” [the 2nd dotted line] the “not chronically ill” enrollees (i.e. healthier people) joined the ranks of the insured en mass.

The individual mandate is necessary and proper to address the market failure inherent in the insurance market for healthcare.

Technicalities shouldn’t matter

As I stated earlier, I’m not a constitutional lawyer so it’s possible that the individual mandate will be struck down because of some legal technicality of, say, Congress not designing the mandate as an explicit tax, which has the exact same consequences economically. Maybe a majority of justices will find some quasi-theological distinction between activity and inactivity, but the Roman Fabius and the Taoist Laozi both teach us that non-doing is a form of doing.

Opponents might not think that the policy tool is perfect, but Congress has the Constitutional power to address a market failure. The Supreme Court should uphold the mandate and give Congress reasonable scope to regulate commerce. If Obamacare is bad policy, elections can be the remedy.

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