Comments

  1. FearItself says

    Hey, quick housekeeping note: the link to the next post that used to appear in the upper right-hand corner is missing from this post, and from the several previous posts, too.

  2. Betsy says

    Well, there actually ARE two completely independent and separate sovereignties in the US constitutional system: federal sovereignty and state sovereignty, with each having absolute power vs the other over those matters that are designated to each by the document.

    So it's not outright bizarre to talk about state sovereignty. For example, each state has plenary authority with regard to its exercise of the police power (the authority to regulate for the public health, safety, and welfare); while the federal government has NO police power — it simply cannot regulate for the public health, safety, and welfare, but must regulate under some other authority that does belong to it, such as the Interstate Commerce Clause.

    But Pawlenty's argument IS disingenuous and ridiculous because clearly a national law governing health insurance would be constitutionally authorized under the Interstate Commerce Clause, among other possible constitutional rationales.

  3. Michael says

    Neither the states nor the Federal government are "sovereign." The people are sovereign.

    The Declaration of Independence enunciates this principle of modern democracy clearly.

    And sovereignty is inalienable. For example, although we have invaded Iraq, for example, and dictated its laws and government, the Iraqi people remain sovereign throughout. We never "returned sovereignty" to Iraq because the Iraqis never lost it.

  4. JMG says

    Betsy, is health care an article of interstate commerce? I support a clear cut single-payer plan, Medicare for All, as it is both superior operationally but also philosophically and constitutionally.

    On the other hand, a health insurance mandate . . . an order from the feds to buy health insurance from a private, for-profit parasite industry … where's the constitutional grounding for that?

  5. Brett Bellmore says

    "I thought we settled that one at Appomattox."

    Well, that's the problem with settling arguments by shooting people: They only stay settled for as long as the people stay convinced you'll shoot them otherwise. Bullets don't persuade, they merely silence.

    Realistically, you're going to have people talking about state sovereignty so long as the 10th amendment remains in the Constitution, and people aren't shot for mentioning it.

    • Mark Kleiman says

      Brett, it wasn't the Union that decided to try to settle that argument by shooting people. It was the spiritual ancestors of today's nullifiers, secessionists, and Teabaggers. But that attempt to substitute bullets for ballots lost, and the claim that the state governments may set aside whatever federal actions local politicians approve of lost with it. "Liberty and Union, now and forever, one and inseparable!"

  6. Henry says

    JMG,

    I am not Betsy, but I am a lawyer who knows a bit about Congress' authority under the Commerce Clause, and I assure you that Betsy is right that Congress has the authority under the Commerce Clause to regulate health insurance, including mandating the purchase of health insurance. The Supreme Court has interpreted the Commerce Clause to give Congress the power to regulate INTRAstate commerce that even tenuously affects INTERstate commerce, most recently in Gonzales v. Raich (2005), which held that Congress could prohibit the use of home-grown marijuana, which never crossed state lines, for medical purposes, even where it is legal under state law. Requiring people to purchase health insurance may be viewed as nothing more than a tax and hence constitutional.

  7. Ed Whitney says

    Quick question for Henry (or anyone else): a tax is a mandatory payment to a government entity, in return for which citizens are entitled to expect services. They have the right to petition their elected officials if the services are not forthcoming. But with a mandate to purchase health insurance, where do their remedies lie if the services do not materialize? There seems to be a different chain of accountability, but I am not certain how that chain is to be structured if there is an individual mandate to purchase a product from an insurer. I suppose that the insurance commissioners at the state level would be involved, but there seems to be a distinction to be made. Can you clarify for me?

  8. Henry says

    Ed,

    You state that "a tax is a mandatory payment to a government entity, in return for which citizens are entitled to expect services. They have the right to petition their elected officials if the services are not forthcoming." But you can't mean "entitled" to expect services in a legal sense — only in a moral sense. In other words, you have a right to sue the federal government for services only when the government allows you to; i.e., only when the relevant federal statute grants you a right to sue. Your "right to petition [your] elected officials if the services are not forthcoming" amounts to no more than a First Amendment right to write a letter to your congressperson. Thus, there is no real "chain of accountability" except insofar as a statute prescribes one, so your question amounts to what federal rights the forthcoming health insurance legislation will contain. I don't know the answer to that, but you're right that you'd have rights under state law. If a company doesn't provide what you paid for, you can contact your state insurance commissioner or sue the company under state law for breach of contract.

  9. JMG says

    Henry, as an attorney myself I am not unaware of the line of cases commencing with the astonishing Wickard case (holding that wheat grown for use as forage on a farm came under USDA regulations because wheat as a commodity was an article in interstate commerce). In fact, I think people can be somewhat excused for thinking that the Burger/Rehnquist/Roberts Courts have done much to reduce the Constitution to little more than an awesome Commerce Clause and the Second Amendment.

    But despite the dismal recent history I still think the question is worth asking — where specifically would Congress get authority to compel individuals to buy health insurance? No credit for hand waving that the Court has upheld a lot of astonishing things in the past.

    Given that health care has itself always been a state function and that insurance regulation has always been a state function, wherefore the power to impose a federal insurance mandate on individuals? Remember too that Medicare and Medicaid are benefits programs, not federal mandates — individuals are free to decline these (and the associated federal money).

    And if we can find some clear source of this amazing power — to force people to enrich for-profit companies without offering a public alternative to provide a "regulatory yardstick" (as public power does for private utilities) — what are its limits? That is, if I am a Christian Scientist or other prayer-healing adherent, am I exempt? If I am a woman and my health insurance won't cover abortions or a full range of contraception (including voluntary sterilization), am I still required to purchase it? If my clinical depression and other mental ailments (bipolar disorder, schizophrenia, etc.) run in my family, am I required to purchase insurance that won't help me using money that I would otherwise be able to use for treating those, even when the market offers only insurance options that maintain the absurd discrimination against people with brain ailments?

  10. Henry says

    JMG,

    You write, "health care has itself always been a state function and that insurance regulation has always been a state function." But commerce in health care and insurance is commerce, and, if it affects interstate commerce, then Congress may regulate it. In United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944), the Supreme Court held that insurance is interstate commerce. As a consequence, the insurance industry lobbied Congress to enact the McCarran-Ferguson Act, which reserves most (not all) regulation of the business of insurance to the states. The McCarran-Ferguson Act remains in effect, but it means only that Congress has voluntarily relinquished most of its constitutional power to regulate insurance.

    In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the First Amendment provides no right to religious exemptions from religiously neutral statutes. (The holding was that the state's ban of the use of peyote could be applied to its use in religious rituals.) As for "forc[ing] people to enrich for-profit companies," see Kelo v. City of New London, 545 U.S. 469 (2005), and see the recent bailouts. Your objections to buying insurance that you find inadequate do not raise constitutional questions. Would you be happier if Congress just gave uninsured people health insurance for free, then raised everyone's taxes to cover the cost, but provided people who already had health insurance with a tax credit equal to the amount of the premiums they pay?

  11. Betsy says

    Michael – Yes, all power resides in the people. However, the people exercise that power through their elected state and federal governments. The sovereignties of those governments are the arenas in which the people express their power.

  12. Betsy says

    JMG — Yes, health insurance / health care reform would to a certainty be upheld if subjected to a constitutional challenge. The Interstate Commerce Clause has been interpreted to cover a much expanded range of legislative subjects. Basically anything that can be demonstrated to affect the nation's economic underpinnings would support the exercise of federal legislative authority under the ICC. For health care / insurance reform, only one of many obvious ICC-based rationales would be that Americans' employment mobility is harmed by shortcomings of the existing circumstances (employment-based insurance among them), and that national commerce will be helped if people are covered when they move across state lines, take other jobs, strike out on their own as entrepreneurs, etc.

  13. Betsy says

    JMG — apologies, my post was a little too basic in light of your second post which I overlooked before posting my reply.

  14. JMG says

    Henry, when you write

    "But commerce in health care and insurance is commerce, and, if it affects interstate commerce, then Congress may regulate it. "

    I see a leap from Congresses power to regulate the sale of insurance to a very different proposition, that of forcing individuals to purchase said insurance. I am not contending that Congress could not, if it chose, regulate all insurance carriers and sellers.

    However, that doesn't seem to answer the question: Whence the power to force a mandate to purchase insurance on Americans?

  15. JMG says

    Henry, missed your question here:

    "Would you be happier if Congress just gave uninsured people health insurance for free, then raised everyone’s taxes to cover the cost, but provided people who already had health insurance with a tax credit equal to the amount of the premiums they pay?"

    The question of course isn't whether I'd be happy, but would it be Constitutional. Without benefit of research, I think it would: Given that Medicare is not unconstitutional to my knowledge, Medicare for All would enjoy the same Constitutional status, and many cases hold that Congress's power to tax (and, therefore, to forgo taxes with credits) is just about unlimited, so your proposed system of paying for Medicare for All (including exempting those who prefer their private insurance) seems like one that would pass muster.

    But note the vast difference in what you describe versus what seems to be on offer from the Administration: your proposal includes no mandate to purchase insurance from anyone. The individual may rely on the public insurance plan (just as they rely on the public fire department, etc.) with no action. Paying for the plan is a different question entirely — perhaps some of the hundreds of billions unaccounted for at the Pentagon could be redirected, etc. Perhaps a small Tobin tax on all securities and money trading would be used to fund the universal insurance program and individual tax rates might not go up at all. There's nothing in the Constitution that would require that personal tax rates increase to pay for a new governmental benefit.

  16. Anonymous says

    JMG,

    The Congressional Research Service (CRS) has written a report titled "Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis." CRS is non-partisan and objective. It doesn't conclude that mandating insurance would be unconstitutional, but it takes the possibility seriously. (I learned of the report only after posting my comments on this thread.) To get a free copy, ask your congressperson or senator for CRS Report R40725.

  17. JMG says

    Henry, thanks for that! I forgot about CRS . . . some years ago I was part of a campaign to make CRS reports publicly available. How is it that we failed? Sad.

  18. Anonymous says

    JMG – I'm interested to understand why you think the insurance-purchase mandate might be UNconstitutional. If it's part of a comprehensive program of legislation intended to reform health insurance nationally (and that otherwise passes muster under the ICC), why would that particular component be less justified constitutionally than the other components of the legislation? It leads me to think that you believe there is some protection accorded that would protect individuals from that requirement. If you've got a constitutional theory, I would be interested in hearing it.

  19. Betsy says

    JMG — I'm interested in your thoughts on why the insurance-purchase mandate component might be unconstitutional even if the other components of a health insurance reform schema pass muster under, say, the ICC. Is there a higher protection afforded somewhere in the Constitution that would protect individuals from that requirement? I'd be interested to know what you've got in mind.

    You make a good challenge when you say "No credit for hand waving", but I would ask you to uphold the same standard of argument — I'm asking you to offer more than just your instinct that the purchase mandate would simply be going too far, and would not somehow stand up under the same test applied to the rest of the legislation.

  20. Betsy says

    Doy. Those two comments were both mind. Thought I had to reconstruct a lost comment — apologies for the duplication.

  21. JMG says

    My thinking probably doesn't rise to something as elegant as a Constitutional Theory; I just read the words and go from there. My understanding is that we have a federal system of dual sovereignty in which the states retain full sovereign powers, including police powers (able to regulate for public health, safety, and welfare without restriction) and a federal government with enumerated powers only.

    Thus, I don't question Massachusetts' authority to impose an insurance mandate (presuming that it is constitutional under their state's constitution, which I have not read); presumably each state has the power to do this for their residents.

    Thus, it's not handwaving for me to say that I simply can't find the source of federal authority — I haven't advanced a positive claim (that the feds DO have the authority to impose a mandate). I'm simply asking where in the words of the Constitution or the case law we would find authority for the feds to impose an individual health insurance mandate on Americans? I can only think of a tiny few federal individual mandates that have been upheld — the draft and draft registration come to mind and seems to be the closest analogy. But the Constitution expressly gives Congress the power to raise and equip armies and navies, so the draft stems from that clear grant of authority.

    The personal federal income tax either did or didn't require a Constitutional Amendment (depending on which Court you asked) but the taxing power is generally not questioned post XVI Amendment. Even the Census, which is expressly listed in the Constitution, is a very light burden on Americans, yet it still carries no penalties for noncompliance. You are free to tell a census taker to go to hell and to tear up the forms.

    So, I ask again — where could we find authority for the federal government to require that individuals buy health insurance from private companies?

    Henry mentioned Kelo as an example of requiring individuals to enrich private companies, but that wasn't actually at issue in Kelo, which was about whether eminent domain could be used to pave the way for urban redevelopment (where the property would wind up in private hands). The Constitution clearly gives the power of eminent domain to the government, providing for just compensation. The government didn't require Ms. Kelo to give Pfizer her property; rather, the government condemned her property and that of others as part of a government plan for redevelopment that included ultimately giving title to some of the land to Pfizer. A narrow majority held that the urban redevelopment was a valid public purpose to permit the use of eminent domain. I think that there might have been 9-0 FOR Kelo had the proposal been to require her and her neighbors to sell to Pfizer (or any other private firm) directly. So I don't think Kelo helps here.

  22. JMG says

    P.S. I haven't read Wickard v Filburn for a long time (the wheat case I mentioned above, which is in many Con Law texts to show the vast power of the Commerce Clause), but — If I recall correctly — the farmer there was a participant in federally funded wheatland set-aside programs while, at the same time, he wanted to grow wheat for use on his own farm for his own use on the farm.

    Again, I'm too lazy to search right now but I think the case would have come out differently had he not been a participant in a federal crop support program; that is, the Commerce Clause doesn't actually give Congress the authority to regulate all agriculture. It has been interpreted to give Congress the power to create ag subsidies and those subsidies can have many strings. But I don't think it stretches far enough to give Congress the power to dictate that all growers shall grow A, B, or C, regardless of whether they are participating in federal programs.

  23. JMG says

    Shall I conclude that there is no authority for federal health insurance mandates in the law or is anyone still looking?

  24. Henry says

    JMG,

    The taxing power and the commerce power clearly provide prima facie authority. The burden on you is to show that, despite this, mandates would violate a constitutional provision.

  25. JMG says

    Really? "Clearly"? A tax paid over to a private firm?

    The government certainly has the power to tax, and there would be no grounds to challenge any tax paid to the federal government simply because it was used to provide health insurance for people. But I am unaware of any instance in the history of the US in which the taxing power was used to mandate that individuals buy anything.

    And we've agreed that Congress certainly has the authority under the commerce clause to regulate the sale of insurance. Where is the power, on the other hand, to mandate its purchase? A citizen may be regulated in the purchase of health insurance sold in interstate commerce — but may the citizen be forced to engage in interstate commerce against his or her will? On what basis? Is there another example of this anywhere?

    Why not cite the "necessary and proper" clause or the preamble's "promote the general welfare" purpose statement too?

    I don't agree that the burden is on me; if Congress passes a law with a health insurance mandate, challengers will cite on the 5th A. takings provision, and the burden will be on the proponents, not the opponents.

    Thank you for mentioning the CRS study by the way, my Congressional Rep said he would send me a copy of the report.