Obamacare's Unconstitutional Individual Mandate

The healthcare bill recently passed by Congress includes an “individual mandate” requiring most Americans to purchase health insurance. Lawsuits challenging the mandate have been filed by 20 state governments and various private groups. Those suits deserve to prevail because the mandate is unconstitutional.

Beginning in 2014, most Americans will either be required to purchase health insurance that meets federally mandated standards or pay a fine of up to $695 per year. Defenders of the mandate argue that Congress is authorized to impose it under three parts of the Constitution: the Commerce Clause, the Tax and Spending Clause, and the Necessary and Proper Clause. None of these provisions gives Congress the power to force Americans to purchase products they don’t want.

The Commerce Clause grants Congress the power to regulate “Commerce … among the several states.” The individual mandate, however, seeks to regulate something that is neither commercial nor interstate. Nearly all purchases of health insurance take place within the confines of a single state. Indeed, a combination of state and federal law makes it illegal to purchase health insurance across state lines. In its present form, the health insurance market is not “Commerce … among the several states,” but merely commerce within a single state.

Moreover, the behavior regulated by the bill isn’t even commerce at all. The mandate goes beyond regulating preexisting “commerce” by forcing people to engage in commercial transactions, even if they had made no previous effort to buy health insurance. The power to regulate a preexisting activity is not the same thing as a power to force people to engage in it when they weren’t doing so before. This crucial distinction undercuts claims that the individual mandate is similar to decisions upholding federal laws that forbid racial discrimination by commercial establishments such as restaurants. These laws applied to preexisting businesses already engaged in commercial activity.

Some contend that the constitutionality of the individual mandate is justified by the Spending Clause, which gives Congress the power to impose taxes to “pay the Debts and provide for the common Defence and general Welfare of the United States.” They claim that a mandate could be justified as a “tax” because it imposes a financial penalty. This argument ignores the obvious distinction between a tax and a financial penalty for refusing to comply with a regulation. If the defenders of the mandate are correct, Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse.

Even if the mandate is a “tax,” it still can’t be justified under the Tax Clause. That provision doesn’t give Congress the power to enact any taxes it wants, but only those that “pay the Debts and provide for the common Defence and general Welfare of the United States.”

Some scholars and court decisions define “general welfare” to mean virtually any purpose that Congress believes to be beneficial. This approach renders most of the rest of Congress’ constitutional powers redundant because it would enable Congress to control virtually any activity merely by imposing a financial penalty on anyone who refuses to comply. Indeed, this broad interpretation of “general welfare” even makes the rest of the Tax Clause itself superfluous. If the words “general welfare” give Congress the power to tax and spend for any purposes it likes, surely that includes the power to do so for purposes of providing for “the common defence” and paying the national debt.

Defenders of the mandate also claim that it is justified under Congress’ powers under the “Necessary and Proper Clause,” which gives it the power to “make all Laws which shall be necessary and proper for carrying into Execution” other powers Congress is given by the Constitution. They claim that the mandate is needed to facilitate the healthcare bill’s provisions requiring insurance companies to cover people with preexisting health conditions, which they claim is authorized by the Commerce Clause. But the individual mandate probably isn’t actually “necessary” to implement any of Congress’ other powers.

The purchase of health insurance is not actually interstate commerce, because the law forbids purchases across state lines.

Even if the mandate were “necessary,” it is not “proper.” If the Necessary and Proper Clause gives Congress the power to impose any requirements on individuals that in might affect interstate commerce in some way, then most of Congress’ other powers would become superfluous. Almost anything we choose to do or not do has at least some effect on commerce.

Unfortunately, the Supreme Court has allowed Congress to exercise far broader powers than the text of the Constitution permits. It might well end up endorsing the healthcare mandate as well. Yet even the court’s most expansive previous decisions have not given Congress the power to force citizens to buy products they don’t want. The various lawsuits against Obamacare might fail. If so, it won’t be for lack of a strong case.