Michael E. Rosman
General Counsel, The Center for Individual Rights
I'm going to focus on the constitutionality of the "individual mandate" (the requirement that almost everyone have insurance meeting certain "minimum essential requirements"). And I'd like to open the discussion by suggesting that some of the better arguments regarding the Commerce Clause are somewhat unprecedented because they focus on somewhat different text.
The Commerce Clause gives Congress the power "[t]o regulate commerce with foreign Nations, and among the several States, and with the Indian tribes." In past Commerce Clause cases, it was pretty clear what was being regulated, and the question was whether that something was regulable under the Commerce Clause. For example, in United States v. Lopez, 514 U.S. 549 (1995), Congress was regulating the possession of guns within 1000 feet of a school. In United States v. Morrison, 529 U.S. 598 (2000), it was gender-based, animus-motivated violent crimes.
Not so much with the individual mandate. To the extent that Congress claims to be "regulating" the business of selling and purchasing health insurance, the question is whether requiring people to purchase a product is "regulating" the market in that product. A good argument can be made that "to regulate commerce" as understood during the time that the Constitution was adopted meant to provide rules for commercial transactions that already were being made. That is, it is possible that while certainly affecting the insurance health business by requiring people to purchase health insurance, the individual mandate does not "regulate" that business any more than rules against violence (which increases insurance rates) regulate it.
The possibility the government has emphasized more in its Supreme Court filings is that Congress is regulating the business of health care, and, more specifically, the financing of payments for health care services. The major impetus for the law, the argument goes, is to avoid the uncompensated care that the uninsured cause by being unable to pay for their care. The government says Congress can require people to pay for health care transactions with insurance, and the "individual mandate" just ensures that they do so by requiring people to have the insurance ahead of time.
The problem here is that the law just doesn't tell people how to pay for health care. You can pay for health care with your savings or through barter or by your insurance. To this, the government argues that it was reasonable for Congress to believe that if it forced people to have insurance, that they would use it to pay for health care. That probably is reasonable, but the question is whether it is a regulation of how people pay for health care. Was the "Cash for Clunkers" a regulation of commerce in automobiles because it gave people an incentive to buy cars? I think the better is "no," and that answer casts doubt on whether the mandate regulates the purchase and sale of health care services.
I think a similar dynamic regarding text is playing out with the Necessary and Proper Clause. Hopefully, I'll have a chance to discuss that in future blogs.