The Proposed Health Care Individual Mandate
There is a lively discussion underway (on Volokh and in some op-eds) about whether a federal statute requiring all Americans to buy health insurance would be constitutional under the Commerce Clause. I’m interested in this question because I’m now revising a draft paper on the “30,ooo foot” view of the Obama Administration in political time.
One feature of prior constitutional generations (or new party systems) in their initial phase is that there is often a clash between a rising movement and the Supreme Court over a key demand of that movement. Jackson and Marshall fought over the Cherokee Removal. Dred Scott attacked the Republican Party over slavery in the territories. And the Old Court in the 1930s went after the NRA. It is pretty clear that health care is the crucial issue for President Obama. The obvious question is how could the Court challenge that initiative (if enacted) consistent with existing doctrine?
My faculty colleague, David Orentlicher, and I batted around the following idea today. Congress clearly has broad authority to prohibit harmful commercial transactions. It also has similar power to regulate transactions that occur. But does it follow that Congress can require people to engage in a commercial transaction that they do not want to undertake? (Like buying health insurance). I’m not so sure. Are there any precedents for this? I don’t think so. Conscription is a possibility, but that’s a weak analogy. Nothing else comes to mind. Can you think of any examples of federally-mandated commerce? (Obviously, if Congress just encourages people to buy insurance through tax breaks, then this analysis would not apply.)
Of course, nothing in the “substantial effects” test distinguishes between prohibition, regulation, and requirement. I’m just saying that such a distinction could be made and would be plausible.