Monday, December 13, 2010

The Constitutionality of the Individual Mandate

Today, U.S. District Judge Henry E. Hudson ruled that ObamaCare’s individual mandate requiring all adults to purchase health insurance is unconstitutional because it exceeds the enumerated powers of the federal government. Conservatives in general, and Tea Partiers in particular, are unfurling their “Don’t Tread on Me" Flags in celebration because they think Judge Hudson struck a blow for individual liberty and limited government. That, at any rate, is what the guy who brought the suit, Virginia Attorney General Ken Cuccinelli, is saying: "This case is not about health insurance,” he insisted “It is not about health care. It's about liberty."

But, strictly speaking, it isn't. The question before the District Court wasn’t whether government as such has the constitutional authority to compel people to buy health insurance, but whether the federal government does. The government of Massachusetts is already enforcing an individual mandate that is identical in all material respects to the one contemplated by ObamaCare. That hasn't provoked a constitutional challenge because, as far as I know, there’s no colorable legal argument to the effect that individuals have a constitutional right not to buy health insurance. To find such a right, a judge would have to scan the penumbras cast by various provisions of the Bill of Rights in an exercise of judicial activism that would have made William O. Douglas blush.

Before they get carried away, straight-laced federalists and conservative libertarians should contemplate the paradoxical implications of Judge Hudson’s opinion. As far as I can see, it would be perfectly constitutional under his analysis for Congress to enact a single-payer health care system. Health care services are surely an article of interstate commerce, and thus subject to federal regulation under the commerce clause. And the federal government clearly has the taxing power to make each taxpayer pay for everyone’s health care, including his own. Yet, by all accounts, a single-payer system would be a much larger expansion of federal authority at the expense of state sovereignty than ObamaCare.  Moreover, every conservative I know would regard it as a much more serious assault on individual liberty.

I regard the fact that Judge Hudson’s opinion has such paradoxical implications as pretty compelling evidence that it’s legally unsound.  That, however, is a matter as to which reasonable people can and will disagree. Yet conservatives should still be careful about what they wish for.


KenB said...

Hmmm... the federal government can raise taxes and then give the money to GM -- does that mean that it would be constitutional for the fed govt to require all Americans to buy GM cars? I'm no expert, but there seems to be at least a theoretical difference.

In any case, I guess the true obstacle would be the disapproval of the public. So regarding health care, this might be reason enough for PPACA opponents to celebrate the ruling, since the national voting public seems to want a single payer system even less than a health care mandate.

Mean Voter said...

This will play out in the courts for a long time to come. I suspect there will be decisions on both sides and the Supreme Court will be the final word on it. Though I wonder -- if the next Congress chips away at the law and even changes it or repeals it, won't it become a moot point in the courts, at least as it is currently written?

Dave said...

Ron, I don't disagree with your logic often, but in this case I'm afraid I don't see any paradox.

Republicans dislike Law A (PPACA), and they dislike Law B (single-payer) even more. Law A is unconstitutional, and Law B is not (for the sake of argument). Where's the paradox in any of that? Is there a rule that party opinion must be directionally correlated with constitutionality?

Essentially, Republicans lost the political battle, so now they are opportunistically fighting the procedural battle even though that's not their real complaint. You could argue that this is a political misstep on their part, or complain that it's disingenuous political gamesmanship. But I don't see how you get from scolding Republican tactics to concluding that "it's pretty compelling evidence that [the opinion itself] is legally unsound."

By the way, the state-vs-federal question (your second paragraph) presents even less of a paradox, in my mind. There are some things that state governments can do that federal governments can't. The Cuccinelli case is challenging the federal government, not the states. Again, Republicans may be somewhat disingenuous in taking a procedural tack when clearly they'd love to challenge Massachusetts too, but that's just politics, not paradox.

Ron Replogle said...


Let me try to explain what I'm getting at more clearly. This is a case not about liberty but about federalism. If single-payer is constitutional, then Congress has power under the commerce clause to preempt any and all regulation of health care by the states. But if Judge Hudson is right, the federal government lacks, and the states retain, the authority to enforce an individual mandate. The paradox is that, by implication, Judge Hudson is upholding a complete preemption of state sovereignty by the federal government and disallowing an incomplete preemption of state sovereignty IN THE NAME OF FEDERALISM.

If you ask me, that suggest that Judge Hudson's misconstruing not only the commerce clause but the necessary and proper clause. But the result he's reached is still paradoxical even if I'm wrong about that.

Dave said...

Okay, I hear you now. Thanks for the response. I'm closer to agreeing that there's something squirrelly about this, if in fact Hudson would find single-payer to be constitutional. (That part I'm not sure of, although as a non-lawyer it's hard for me to parse his full opinion.)

I do think Hudson smartly recognized reality in essentially saying "I'm gonna have to escalate this one." This case is clearly going to write the next chapter of precedent in commerce clause interpretation, and as such should be decided at the top.