Are Health Insurance Mandates Constitutional?

Well, this from the LA Times raises an interesting question.

An important element is being overlooked in the healthcare debate between the Democratic presidential candidates: Namely, whether the plans they propose are constitutional.

The largest difference between their healthcare plans is that Sen. Hillary Rodham Clinton would “mandate” that everyone (with limited exceptions) purchase private health insurance. Although Sen. Barack Obama’s plan also contains a mandate, it is much narrower — it is only required for children. Obama principally relies on subsidies, economies of scale and regulation to voluntarily achieve his version of universal coverage.

Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.

I’m completely in favor of universal health care. I realize we’re going to have to settle for universal health insurance at best in the shorter term. Even so, mandates to purchase private health insurance have always struck me as icky. That’s not to say that the reasons proponents believe in them aren’t valid. They are valid, but that doesn’t mean they’re the right way to go. It just means that there are significant problems with providing universal health coverage via the private, mostly for-profit, insurance market instead proving it as a federal program funded by progressive taxation.

Health insurance mandates have been compared to the requirement to have automobile insurance. It’s never seemed to me that one thing had anything to do with the other. Driving is a thing you do. It might be a necessity for you, but driving a car is not the same as occupying your own body, which, astral projection aside, seems to be the most basic part of the human condition. In fact, you’re not even required to buy auto insurance to be a licensed driver. You have to have it to own and operate your own motor vehicle. That’s all. And even at that, the law is only going to require you to have liability insurance. If there are other mandates it’s because you have a loan on the vehicle and they’re part of the contract with the lender.

Some of my favorite politicians and pundits are in favor of mandates and I respect their opinions, but it does seem possible that the ickiness factor could also be a legal bar to instituting mandates at all. I hope some more constitutional law experts weigh in.


10 responses to this post.

  1. Posted by dogeatery on April 5, 2008 at 8:17 pm

    Americans will never have universal healthcare provided by non-profit institutions becuse all of our politicians care too much about private, for-prifit institutions

    It’s the sad truth, and why I will ALWAYS vote Nader


  2. If we are looking at the constitutionally, you have to look at Article 1, sections 8 and 9, which limit what power they do and don’t have given to them.

    Section 8 of this Article has a section that gives them the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

    On a personal note, the government really doesn’t have a good history of fixing problems. Generally speaking, the more the government gets involved, the worse the situation becomes. And once the government gets its’ hands on something it doesn’t like to let it go.


  3. The government may not have a good record of solving problems – I would say it’s a mixed record – but the market sure isn’t solving this one. Family coverage – at group rates – runs 1200 to 1400 a month, sometimes with substantial out of pocket expenses as well. No coverage means that one medical crisis can put you in debt for life. A chronic condition can permanently impoverish you. And prices are only going up. It’s a real crisis and there is no solution on the horizon other than for we the people to do it collectively, through government.


  4. This is just a power that I do not think the federal government was meant to have. Let’s give the states that power first, maybe find a way to eliminate the middle man (insurance companies) before going to the federal government. Once you go there, there is no turning back.

    “Collectively” reeks of Socialism.

    Building of Roads, Postal System and National Defense are about the only three examples I can think of that are “successes” and these were powers expressly given to the government in the Constitution. Do you have other examples?


  5. I understand that you don’t think the federal government was meant for this kind of program. I disagree. I’m not the strict constructionist that you might be. As to the term “collectively” reeking of socialism, collectively is still the best way to approach issues that relate to the common good. The fact that those terms cropped up in socialist theory don’t mean they’re forbidden in public discourse now.

    The time is past for “trying” things. Access to medical care is something that needed to be addressed several years ago. The situation can’t be left to worsen while we kid ourselves about the market being perfect. It’s far from perfect when it comes to providing access to necessities for people without financial resources.


  6. Well said. I think the great thing about this country is the freedom for grown adults to express their ideas and still be civil with one another.


  7. That is incredibly civil of you, especially for the internet. Thank you for your comments.


  8. Posted by VCBaker on September 5, 2008 at 10:26 pm

    I’ve heard Michael Moore talking about a Democratic bill that will do away with the insurance companies altogether. Does the government have the power or the Constitutional right to force an entire industry out of business? We’re talking about a lot of capital, jobs, stock investments, etc. What about due process? What would the effect be on the economy? How would the nation make the transition?


  9. Sadly, there is no current plan to do away with insurance companies altogether. All anyone is proposing are plans to make real access to health insurance universal.


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