Is the health care mandate unconstitutional?

Keeping score: the federal judges who have ruled that the individual mandate in the health care reform act is constitutional slightly outnumber those who have ruled it unconstitutional. Obviously, with such division among appeals courts, it will wind up with the Supreme Nine.

In the New York Review of Books (Feb. 24, 2011), Georgetown University law professor David Cole explains the reasoning for finding constitutional support for the bill, specifically the individual mandate. I'll summarize:

1. The Constitution explicitly confers on Congress the right to regulate interstate commerce. Long-established precedents uphold fairly broad interpretations of "the commerce clause." No one really makes the case that health insurance does not involve interstate commerce.

2. Another provision, the "Necessary and Proper Clause, authorizes Congress to enact laws that are "necessary and proper" to carry out those powers, even if not expressly authorized by the Constitution's specific enumerative powers, . This interpretation dates back 200 years to the important decision that allowed the establishment of a national bank -- necessary in order to carry out the express functions of coining money, and taxing and spending. The same reasoning was reaffirmed just last year in a different kind of case, and the 7-2 majority was joined by Roberts, Alito, and Kennedy.

The individual mandate should be covered by similar reasoning: The right of Congress to regulate health insurance under the Commerce Clause is not being questioned (except perhaps by the extreme libertarians). One can then argue that the individual mandate is "necessary and proper" in order to prevent a large increase in premiums, if those who don't currently "need" insurance (i.e., the healthy ones) don't participate. Hence the universal, individual mandate.

3. In addition, Cole says that the individual mandate is permissible under Congress's power to tax. Politically, Obama doesn't want to call it a tax -- but in fact the individual mandate will be collected with the individual's income tax and used to "help the federal government defray the
health care costs the uninsured fail to pay."

Cole goes on to point out that Congress clearly has the power to tax in order to provide health insurance: as in Medicare and Medicaid. And if it had simply expanded them to provide universal health care, there would be no argument about it's permissibility. Personally, I think that's what they should have done. It would have been simpler, without all this challenge and defense.

Cole concludes:

In short, Congress had ample authority to enact the individual mandate. Absent a return to a constitutional jurisprudence that has been rejected for more than seventy years and, even more radically, an upending of Chief Justice Marshall's [1819] long-accepted view of the Necessary and Proper Clause, the individual mandate is plainly constitution."

There you have it. Arguments for the other side rest simply on saying that the Commerce Clause doesn't cover the individual mandate and ignoring the other two clauses that Cole relies on. Seems clear to me.

Ralph