CAN CONGRESS require citizens to purchase health insurance? Professor Randy E. Barnett says not. He makes his case, appropriately, in legalese, so his article may not be your cup of tea. But his arguments are compelling. Some snips:
[The claim that the government can compel a person to engage in economic activity [buying a health-insurance policy] has never before been asserted by Congress, much less validated by the Supreme Court. It is literally unprecedented. . . . [Apart] from registering for the draft, serving on a jury, submitting a tax return, and responding to the census, none of us can think of any such personal mandates [enforced by a fine]. . . .
[Accepting] this theory would open the door for an infinite variety of mandates in the future. Under this theory . . . Congress can mandate individuals to do virtually anything at all on the grounds that the failure to engage in economic activity substantially affects interstate commerce. Therefore, it would effectively obliterate, once and for all, the enumerated powers scheme that even the New Deal Court did not abandon.
Such a doctrine would run afoul of what the Constitution says about the powers of Congress [and] what the Supreme Court has consistently said about the scope of those powers . . . .
Unable to produce a single example of Congress having used its Commerce and Necessary and Proper Clause powers in this way, defenders of the personal mandate [have shifted ground and labeled the penalty for violating the mandate] as an "excise tax." . . . . This shift will not work.
[If] their theory is accepted, Congress would be able to penalize or mandate any activity by anyone in this country, provided it limited the sanction to a fine enforced by the Internal Revenue Service.
This is a congressional power unknown and unheard of before 2010. It would effectively grant Congress a general police power. And we know what existing doctrine says about such a power: "The Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation." Such has been the Supreme Court's position from the Founding until today.
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. . . . Ordinarily, persons are responsible for their failure to act -- or omissions when they have a preexisting duty to act. A mandate to act, therefore, presupposes the existence of a duty. But with the individual mandate, there is no pre-existing duty. . . . [The] duty to purchase health insurance is entirely of Congress's creation. Because imposing such a duty upon the American people is improper, the American people retain their sovereign power to refrain from entering into contracts with private parties, even when commandeering them to do so may be convenient to the regulation of commerce among the several states.
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[Suppose] that when [Obamacare] reaches the Court, it is perceived by the Justices to be unpopular. Suppose it is also widely perceived to have been adopted by a bare partisan majority employing unusual and suspect parliamentary maneuvers to avoid the consequences of the loss of the "Ted Kennedy" seat in the Senate -- an election that turned on opposition in Massachusetts (of all places) to this particular measure. Then suppose that Democrats lose control of one or both houses of Congress after the election in which their members run away from the Act.
Now, I am not suggesting that the Supreme Court would strike down the individual mandate simply because a majority perceived it to be unpopular. But I do think that if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid constitutional objections they might otherwise resist. . . .
If the Act continues to be perceived as unpopular, I doubt that a majority of the Court would stretch [existing constitutional theory] to reach inactivity and authorize economic mandates. . . . Justice Scalia could write in his sleep the opinion holding that economic mandates in general, and the individual insurance mandate in particular, constitution an improper commandeering of the people.
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[In] its haste, Congress neglected to insert a "severability" clause that expressly allows the rest of a statute to survive if an unconstitutional provision is stricken. Courts may reasonably conclude that Congress could not have intended that the insurance company regulations survive without the individual mandate that the govenment now claims is "essential" for them to work.
. . . . [The] more plausible the government's claim of necessity, the less plausible becomes its assertion of severability. . . .
The ultimate appeal of the anti-commandeering principle . . . is that it so precisely identifies why the individual mandate has so riled the American people. In the United States, the people are supposed to commandeer the government, not the reverse. [Legal] observers are beginning to realize that the mandate is of questionable constitutionality based not only on what the Constitution says, but also on what the Supreme Court has said. And awareness is also growing that finding five votes for so radical a change in the American political system may be harder than some have thought.
(Randy Barnett, "Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional," forthcoming in the New York University Journal of Law, 2010 (citations omitted))
Go here for a good interview with Mr. Barnett that explains his thinking in more accessible language.
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