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A Project of The Annenberg Public Policy Center

Health Care and the Founding Fathers

Expect January to be dominated by House-Senate wrangling over the final shape of the gargantuan bill to overhaul the nation’s health insurance system.

Some opponents of the measures, though, are readying themselves for another potential fight, this one in the courts. An Arkansas group called the Conservative Action Project says it believes the overhaul is unconstitutional, and it is preparing to sue to stop it from taking effect, according to several conservative blogs (we attempted to reach someone at the organization but were unsuccessful). A step in that direction was taken by Republican Sen. John Ensign of Nevada on Dec. 22, when he filed a constitutional point of order against the legislation, a vote he was expected to lose.

Essentially, the question is the same one we laid out in October: whether Congress has the authority to require individuals to buy health insurance and pay a fine, or “tax,” if they don’t. The individual mandate is a key part of the overhaul; its architects argue that without it, too many people might forgo insurance until they are sick and then come into the system when they require the most costly care, throwing the financial incentives of the bill out of whack.

The mandate is central to making the overhaul work, supporters argue, and is permitted by the Constitution’s commerce clause. Article I, section 8 of the document gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The business of health insurance, this side maintains, is clearly “commerce.” Erwin Chemerinsky, dean of the University of California Irvine School of Law, notes that the Supreme Court has interpreted Congress’ authority broadly under this provision.

Chemerinsky, Los Angeles Times, Oct. 6, 2009: A few years ago, for example, the court held that Congress could prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce. The relationship between healthcare coverage and the national economy is even clearer. In 2007, healthcare expenditures amounted to $2.2 trillion, or $7,421 a person, and accounted for 16.2% of the gross domestic product.

On the other hand, some conservatives argue that this would be a case of first impression. “The federal government has never required all Americans to buy any good or service,” says a Heritage Foundation memo authored by three attorneys, including Georgetown University law professor Randy Barnett. “The individual health insurance mandate is truly unprecedented.” Similarly, the nonpartisan Congressional Research Service earlier this year noted that “it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.”

The fact that the penalty for not buying in is called a tax, rather than a fine, in the bill could provide another defense – Congress’ tax-and-spend powers.

At any rate, the case is not yet ripe. A challenge could only be filed by someone who was penalized for not purchasing insurance, and the fine (or tax) portion of the overhaul won’t kick in – if the bill becomes law – until 2014 as the measures now stand.