As the health care reform debate has raged on and bills have taken shape in the Senate and even passed the House, the so-called individual mandate has become a central part of most reform packages under consideration. This is a different twist from the angle under which I considered the constitutionality of health care reform in the article Health care reform and the general welfare clause, and, constitutionally, it must be a deal breaker.
It is a settled constitutional fact that Congress can spend federal tax revenues on any program that it feels advances the general welfare, whether the form of that spending takes the form of direct grants, tax credits, tax deductions, or subsidies is of little consequence constitutionally. If Congress wants to set up incentives to give people tax deductions for buying health insurance, for example, or send subsidies directly to people / families who make less than four times the federal poverty rate, then it is acting within its constitutional prerogative.
However, there is no constitutional power delegated to Congress allowing it to impose fines on people for not buying health care insurance. There is a big difference, philosophic and constitutional, between incentivizing people towards desired behaviors and punishing them for not following a prescribed mandate. Article 1, Section 8 and the Fourteenth Amendment form the boundaries within which Congress may legislate, and outlawing a lack of health care insurance is simply not within those boundaries.
This is undoubtedly a power of a State, but not a delegated power of the federal government.
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2 comments:
I've thought about it and I really do have a problem with forcing everybody to buy insurance. Good call on that one.
Kelly and I engaged in a conversation related to this post via email. It follows:
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Kelly to Craig
Nov 17
I would really like to see your research/analysis on the section/clause/reading which would prohibit the Federal government from forcing individuals into buying insurance.
Another question would be why the constitutionality hasn't been part of the debate or at least used as ammo by the GOP. This assumes that it hasn't already, which it may have.
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Craig to Kelly
Nov 18
I am not focused on a particular clause yet that prohibits individual mandates. Rather, it's unconstitutional because there is no delegated power for Congress to legislate such mandates. The general welfare clause's context is set within Congress's appropriation power.
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Kelly to Craig
Nov 18
How about this. The Constitution grants the power to levy taxes, tariffs, fines, etc. One another note, when two parties have a contract, say a housewife hires a maid, if the maid refuses to perform any cleaning services the Constitution prohibits laws that force performance. Can the same be said for forcing citizens to spend money that isn't a tax/fine/tariff? I'm trying to develop an alternative line of support but am not sure of my memory of the connection.
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Craig to Kelly
Nov 18
Congress doesn't have the power to legislate fines, per se. I did a cursory search and fines only show up in the Eighth Amendment, specifying that no excessive fines shall be imposed. I guess one can argue by twisted logic that this implies Congress has power to impose fines since the Amendment is necessary to outlaw excessive fines. But this sort of argumentation surely turns the purpose and spirit of the Bill of Rights on it's head. Sort of like saying the Government can torture as long as it's not excessive. Hardly convincing.
Article 1 section 8 clause 1 gives Congress the ability "To lay and collect Taxes, Duties, Imposts and Excises" which is the arguable source of it's power to provide for a public option. This was the clause I relied on to analyze the constitutionality of health care reform in my first post on the topic.
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