Can Congress Order Americans to Buy Health Insurance?

[OneTenthofOnePercent]

This is an interesting concept I've never thought of until I saw this article on another forum. YES... CNS News is not exactly a beacon of balanced discussion, but the question does at least enough merit to be addressed. As far as I'm concerned, the tone and perception garnered by the article are clearly right-wing slant but the heart of the discussion is very relevent to any HCR that mandates people buy insurance of some kind. Perhaps this is why there is always discussion of an "opt out" with no penalty - constitutionality. The more I think about it, the more I think people can't be forced to buy something or face punishment.


Senate Judiciary Chairman Unable to Say Where Constitution Authorizes Congress to Order Americans to Buy Health Insurance
Thursday, October 22, 2009
http://www.cnsnews.com/news/article/55910

(CNSNews.com) – Senate Judiciary Chairman Patrick Leahy (D-Vt.) would not say what part of the Constitution grants Congress the power to force every American to buy health insurance--as all of the health care overhaul bills currently do. Leahy, whose committee is responsible for vetting Supreme Court nominees, was asked by CNSNews.com where in the Constitution Congress is specifically granted the authority to require that every American purchase health insurance. Leahy answered by saying that “nobody questions” Congress’ authority for such an action.
CNSNews.com: "Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?"
Sen. Leahy: "We have plenty of authority. Are you saying there is no authority?"
CNSNews.com: "I’m asking--"
Sen. Leahy: "Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that."

When CNSNews.com again attempted to ask which provision of the Constitution gives Congress the authority to force Americans to purchase health insurance, Leahy compared the mandate to the government’s ability to set speed limits on interstate highways--before turning and walking away.
CNSNews.com: "But where, I mean, which–"
Sen. Leahy: "Where do we have the authority to set speed limits on an interstate highway? The federal government does that on federal highways."
CNSNews.com: "The states do that."
Sen. Leahy: "No. The federal government does that on federal highways."

Prior to 1995, the federal government mandated a speed limit of 55 miles an hour on all four-lane highways. The limit was repealed in 1995 and the authority to set speed limits reverted back to the states. Technically, the law that established the 55 mile-an-hour limit--the Emergency Highway Energy Conservation Act of 1974--withheld federal highway funds from states that did not comply with it. The law rested on the Commerce Clause, which give Congress the authority to regulate interstate commerce, and Congress’ authority to dole out federal tax revenue. Someone who does not buy health insurance, critics have argued, is not by that omission engaged in interstate commerce and thus there is no act of interstate commerce for Congress to regulate in this situation.

read the other half of the article @ the link provided... ignore the rest of that site (you've been warned)

[Hoopla Phil]

1. I've been questioning that for some time now. K and R.

[elleng]

2. ORDER? Prolly no.

Encourage? sure.

[OneTenthofOnePercent]

3. I would consider penalties or fines of non-compliance an order.

There is fine line between penalties/fines and incentives. For example, I would think offering a tax break for people with a set minimum insurance is an incentive or encouragement. I would also consider fines and penalties for not purchasing health insurance as punishment for failure to comply with an order/mandate.

Both scenarios are certainly implementable... but I just don't see what gives congress the power to order Americans to buy a product.

[Ozymanithrax]

4. Constitutional laws force us to buy automobile insurance or put up a bond

to cover minimum damages.

They can set a national speed limit of 55 mph.

So my answer, to paraphrase Phinias, "Why yes, yest they can."

[Hoopla Phil]

5. Some thoughts.

First I find the car insurance to be unconstitutional as well BUT that is moot. Driving a car on public roads and meeting the requirements to do so is not comparable to being alive.

The did NOT set a 55 mph limit. The feds would have withheld highway funds if the states did not set the 55 limit. That is not a legal mandate but a caret and stick approach.

[Ozymanithrax]

11. After a quick search, I find that there are a number of cases..

that touch on insurance, but the SCOTUS has never saw fit to weigh in on it. Until they do, it should be considered constitutional since they have had chances and never chose to take up a case.

If you are a Constitutional Lawyer, or can link to a case where the SCOTUS has said differently, I would be interested in seeing it.

As for 55mph, it was signed into law by Nixon and revoked by Clinton. Once again the SCOTUS never weighed in on its Constitutionality.

Mandatory insurance is like any other tax, and the Congress has the power to tax. It is not necessarily the way I would care to see them go. I don't believe in welfare for Insurance companies. But if it gets every American insured I would back it as part of my civic responsibility.

[OneTenthofOnePercent]

6. Not entirely true.

Yes, congress used to force a speed limit on federally regulated hiaghways with penalties for noncompliant states. When this was in effect, Congress derived the power to enforce such a policy from the interstate commerce clause. THAT GAVE THEM THE POWER. In the OP article, the reporter is simply asking WHAT gives congress the power to mandate Americans buy health insurance. Precedence of past mandates on citizens is not evidence empowering other future mandates - future mandates still need constitutional granted power to enforce.

Also, insurance is required on public roads only. Federal roads - federal rules. Private vehicles on private land/roads need no registration, insurance, or operator's licenses and no speed limits are enforceable. Even so, citizens may decide that they do not wish to have insurance and drivers licenses without penalty - however they simply cannot operate vehicles on public roads. Citizens ARE NOT however fined or penalized if they choose not to have a DL or insurance... they just cannot drive on the roads.

I believe it should be the same with HCR... if a citizen chooses not to have insurance fro whatever reason, then there should be no fine but that person should not expect to be able to access certain healthcare that requires such coverage.

[Ozymanithrax]

12. Certainly, you don't need insurance on private propterty....

but it is mandated on all public roads, and the relationship remains intact.

If a citizen chose never to leave his or her private property, signed a death wavier that required absolutely no assistance be given in the event of a catastrophic accident or any other unforeseen health emergency, then I could see not having public insurance. But the moment you move into the public, then your health can affect everyone. You can not refuse health care to those who are not covered, that is why people without health care can walk into an emergency room. As long as anyone can walk into an emergency room and doctors are required to save their lives, everyone should be covered. Now, if you agree that anyone not having health insurance in such a system should be allowed die where they fall, or a bullet put in their head to limit their suffering, then I might agree to no health insurance. If you can guarantee a person refusing to get health insurance never gets a cold, Aids, Cancer, or any other disease, then people should be allowed to go without paying. But along with living, everybody dies and everybody eventually becomes ill. Your chances of dieing young are much lower. That doesn't mean that a catastrophic accident wouldn't put you or anyone in a hospital. It is immoral and illegal to just let you die simply because you prefer to gamble with your life.

Mandatory insurance works for the greater good of everyone. It works on the principal that everyone is alive and, even without insurance, can not simply be allowed to die.

[OneTenthofOnePercent]

18. correct me if I'm wrong, but isn't car insurance state-regulated... not federally/congressionally.

Besides that observation...

Logically, I can certainly understand your argument... I really can. I even agree with you! Insurances of all kinds benefit public-at-large, no doubts there. But that doesn't change the fact that I can find nothing in the constitution that would grant such congressional powers. However, one must be pragmatic when seriously approaching HCR.

If, in a single act of legislation, congress could solve the social problems of America but the Constitution does not grant congress powers to enforce such legislation then how could congress enact such legislation? They couldn't, legally. Despite the public benefits and 100% bipartisan support... an unconstitutional law can't be enforced if challenged.

[Ozymanithrax]

36. Actually it does.

In article I Section 8 of the Constitution, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

So, as long as they are uniform in the way they collect he funds, they can force Americans to pay for Health Insurance. Earlier, there was a discussion that concerned forcing Americans to pay for Insurance privately or pay throgh what was called a penalty to cover their Health Insurance. This all falls under the General Wellfare clause of the Constitution, which has been used to cover Medicare and Social Security, which people on the right claim to be unconstitutional. If they should require Health Insurance, it will be the General Wellfare clause that is used to provide the power, and the SCOTUS will have to make a decision when the inevitable right wing law suites come to attempt to stop its implementation.

The power is there if they want to use it that way.

Actually, I think a single payer system would be the best, where Congress collects taxes from all Americans and uses that to pay the medical expenses/Insurance for Americans.

[OneTenthofOnePercent]

40. My understanding of that passage may be different than most...

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

I read this to mean, in simplified terms:

"The Congress shall have Power To (collect money) to (fund debt, defense, and general welfare); but all (money collected) shall be uniform throughout the United States;"

I think this means Congress could TAX us for the money to cover healthcare cost, but I fail to see how this helps support a mandate for us to BUY healthcare.

[Ozymanithrax]

43. The understanding that I follow is what I read from various Constitutional lawyers and historians.

It is always possible for a court to sweep away established law, but relativly rare. More often they peck away at a law over many cases. This is how segregations was ended. Brown Vs. the Board of Education was only the last in a series of many cases that eventually pushed the court to make the right decision. This is also the process abortion opponents have been using, working to destory Roe V. Wade on tiny cut at a time.

Pehaps future Courts will change what they see as the meaning of the General Welfre Clause, but to date it has been a catchall for Congressional programs to create a social safety net.

[jdlh8894]

7. Those are state laws!

Auto insurance requirements are set by the state.
Speed limits are set by the state.
Health insurance is sold within state limits under state regulation.
If health insurance could be sold across state lines(interstate commerce), then let the feds have at it.

[Ozymanithrax]

13. That is going to happen. It will be necesasry to bring the price down.

The anti-trust protection for health care is gong to go away, as it should.

[la_chupa]

9. driving is technically a privilege that can be revoked

I suppose that depending on the circumstances "living" is also a privilege that can be revoked say in the case of a murderer, but for the most part I think its safe to assume that living is a right.

you know ah what is that old tired cliche "life, liberty, pursuit of happiness"

I've thought about this though and if they can force you to pay taxes or go to jail then I suppose they can force you to have health insurance.

[OneTenthofOnePercent]

10. There are constitutional powers that allow congress the power to tax.

And under those powers congress can establish the tax code.

The real question I just cannot find is what gives them the power to enforce a mandate. Interstate commerce seems to be a catch-all for a ton of questionable crap congress has done, but a mandate to purchase insurance seem to fall outside of even the interstate commerce clause.

What if the government mandates by law that every person in america do 100 sit-ups and 100 push-ups every week in the interest of establishing a healthier populace. Failure to do so would result in a $50 fine for each exercised missed. Sure congress could write and pass such a law - but what would give congress the authority to enforce the (obviously unconstitutional) law?

[CTyankee]

26. Aren't people required to pay a Medicare tax in their payroll taxes?

I don't think you can just say "no" to that...

[OneTenthofOnePercent]

31. I cannot say.

I honestly do not know the first thing about medicare, sorry.
I'm not even halfway there yet. :blush:

[CTyankee]

38. Seems to be in the same category as you have put hcr legislation.

So that means if the hcr bill gets passed and signed into law and its constitutionality is challenged in court, then Medicare could be threatened as well. And THAT would mean we'd have a consitutional amendment faster than you could sneeze...

[Ozymanithrax]

14. Laws have been passed that require emergency rooms and hospitals to care even for those ...

without health care.

Our system of catastrophic health care sucks, and costs everyone one of us in higher insurance premiums and higher medical bills.

The alternative, is to let those without health insurance or the immediate means to pay die. I would not want to live in that country.

[dysfunctional press]

19. only for people who own cars and drive them.

in that sense- it's a regulation associated with a personal choice. LOTS of people don't own cars.

[Laelth]

8. Yes.

Whether said law will be Constitutional is an entirely different question, one that must be decided, if at all, by the Supreme Court.

Congress can pass any law it wants. If the law it passes is unconstitutional, it might get overturned by the Supreme Court.

:dem:

-Laelth

[inna]

17. Do you think there is a chance that the Supreme Court might overturn...

... such a law (that is likely to be passed) that would require Americans to buy insurance from private companies?


Curious about your professional opinion on this.

[OneTenthofOnePercent]

22. I think don't think that is out of the question.

Not that interstate/intrastate commerce is necessary "my area"... but I think that if the claim doesn't receive at least a half-assed rebuttal then, with the slight right-leaning majority of the SCOTUS, HCR legislation may be overturned. It would be interesting because, at the point of a SC overturn, the American people and healthcare industry will be neck deep in the HCR and reverting back may be impossible. Observing should be very interesting to say the least.

onetenthofonepercent esq.

[Laelth]

41. I have no clue on this.

It's unprecedented, as far as I know, for the Federal Government to order people to purchase a product from a private entity. If that assumption is correct, and there is no precedent, I can't predict how the Court will rule because they've never ruled on something similar.

That's not very helpful, I know. Sorry.

:shrug:

:dem:

-Laelth

[Vidar]

15. They shouldn't be able to, but they can.

[Tierra_y_Libertad]

16. Only if the Health Insurance and Big Pharma lobbyists approve.

[Bill219]

20. Since when is CNSNews a reliable news source?

[OneTenthofOnePercent]

25. reading is fundamental.

either they made up the entire interview out of this air or the line of questioning did, in fact, take place.
And regardless of whether the interview ever took place, the concepts raised seem like great questions.
In this case, the credibility of the messenger has ZERO impact on the discussion at hand.

[Dreamer Tatum]

28. Questioning the Source is a time-honored obfuscation here

If FOX read off some DUer's winning lottery ticket numbers, they'd tear them up and throw them away.

[dysfunctional press]

21. they can make it illegal not to have it...

if you want to interpret that as an "order", that's your prerogative.
or you could just pay the fine every year, and hope you stay healthy.

[anigbrowl]

42. I don't think thy can, actually

because that would effectively make it a poll tax, and there is a constitutional ban on such. This is a key reason I've always been against the mandate, it's pretty much guaranteed to receive a legal challenge and I think such a challenge would have merit. It's a shortcut to fail.

[dysfunctional press]

44. that's not a poll tax.

a poll tax is when you tax someone to exercise their right to vote.

it also wouldn't be a 'head tax', because it wouldn't be a fixed amount per person. the price they pay would vary from company to company and plan to plan.

[tritsofme]

23. Congress clearly has the power to mandate under the Commerce Clause.

This was settled by Wickard v. Filburn almost 70 years ago.

Your decision not to purchase mandated health insurance could effect interstate commerce in the aggregate.

[jdlh8894]

29. Not familiar w/Wickard v. Filburn

But there is no aggregate(at this time) and there is no interstate insurance.
So, I don't really get your meaning.

[OneTenthofOnePercent]

32. That is the only constitutional avenue I can see.

And, to me, seems tenuous at best as well as a dangerous progression in applying the commerce clause.

In Wickard v. Filburn, the guy was involved in the production and sale of goods. The commerce he was involved in (intrastate commerce) affected federally regulated commerce (interstate commerce) - by extension making his own commerce susceptible to federal regulation. That makes sense whether I agree with the decision or not. I posted the following response elsewhere on DU in concern to the application of the commerce clause. It's one reason I think the commerce clause may not apply in the case of HCR.

I don't view a lack of commerce as being enforceable under the commerce clause. Congress has every right and authority to regulate commerce, especially interstate, and the actions of people involved in such commerce. However, I do not believe congress has the power to regulate any person NOT involved in commerce.

The purchasing of any product (for example, national scale health insurance) would certainly qualify as congressional regulated commerce. However, since when is not purchasing a product deemed commerce? The concept that an individual can be punished for NOT buying a product seems laughable. Not partaking in commerce is not commerce - ergo congress should have no regulatory power in such a situation. If one decides to buy private or public insurance... then by all means, congress has the right to regulate the living-shit out of that product and term of sale.

I mean, what if congress decided that in order to keep the American car industry healthy there would be mandate to all households to purchase a NEW AMERICAN vehicle at least every 3 years - or be penalized. Certainly, mandating such an action would have dramatic impact on interstate commerce and therefore congress would be empowered to exercise such a mandate to purchase cars, right? Obviously, that concept is laughable as congress no such power... so what makes HCR any different in the eyes of the constitution? The bottom line with a mandate for insurance: The government is forcing people to buy a product or be penalized. Land of the free, huh? :eyes:

As you can see, I don't quite agree with the application of Wickard v. Filburn because Filburn's actions were already commerce. I believe that NOT partaking in commerce (not buying a product) is not commerce altogether and therefore unregulated.
If non-action on the part of private citizens can be penalized simply in the name of "affecting commerce"... then what by law CAN'T congress mandate an American to buy, as EVERYTHING we buy affects commerce.
I think a little "slippery-slope" tinfoil hat is in order here: :tinfoilhat:

[tritsofme]

33. Could Congress pass a law regarding vehicle purchase as you proposed?

It probably could.

I doubt that Congress would fare very well in the next election however.

It seems to me that unless you were to never use any healthcare services, your choice not to purchase mandated insurance could effect the broader market, through higher overall costs, less diverse risk pools, ect and would definitely effect commerce in a way that the federal government has an interest.

[OneTenthofOnePercent]

35. Agreed, that a choice to not purchase insurance would affect the market.

Thereby affecting commerce and introducing power to congress.

I just find it a little scary at the thought of being able to consider NOT buying something "commerce".
Not only would congress have the power to regulate commerce for what we do buy (as they do now) but this would set precedence that congress could regulate the consumer's CHOICE (not) to buy. What if congress decides the American public at large should buy US Treasury Bonds to strengthen the economy or face penalties otherwise? HCR with a mandate would set direct precedence to empower such an act of congress. That's one big can of worms to open in expanding congressional power. :scared:

[BrklynLiberal]

24. Excellent point..

[CTyankee]

27. Do you think the "opt out" piece of the PO is being suggested as a way of getting around the

constitutionality issue? It essentially puts hc back to the states and if you don't like it in your state you can always move to one that hasn't opted out...

[OneTenthofOnePercent]

30. More and more, yes that is whay I think it's there for. n/t

[CTyankee]

37. It's funny, that thought came to me but nobody was framing it that way so I thought

it was just my weird mind again. But my first instinct was to say it was a way to innoculate hcr legislation against a constitutional challenge...a kind of pre-emptive defensive move. So I am interested that you seem to agree...

[bvar22]

34. The Constitution ?....LOL

Our government quit going by that old thing a long time ago.

[SoCalDem]

39. Yes.. here's why

People who do not have insurance, end up (in some way) having to rely on government(taxpayer-paid) services...either through bankrupcty, followed by medicaid (has federal money in it), food stamps, AFDC, subsidized housing, etc...or by the use of coounty hospitals (also subsidized by fed money)..

anything that has any federal money in it, can be extrapolated, and eventually tied into losses due to lack of medical coverage.

the current spin is all about how people have become impoverished due to medical expenses, so if there is a plan that;s endorsed, recommended, ordered by the government, and people refuse it, look for the courts to adopt a "told-ya-so" approach, and to start denying any further assistance.

the big insurance companies are in this to get new customers, even if the product they will push on people is of little use.. if it's a mandated expense, people will refuse it at their own peril..just as auto insurance is now.. there are people who drive without it, but if they ever NEED it and don;t have it, they are royally screwed..

[eridani]

45. It's like being required to buy melamine-laced pet food

What else would you call being forced to give money to useless intermediaries whose buisiness model is killing and bankrupting people for profit?

I don't have a problem being required to pay for Medicare--I just want to be allowed INTO it.