The Constitutional Fight over the ObamaCare Individual Mandate

I recently attended in Washington, D. C. an insightful debate, “How to Interpret the Constitution.” I asked each of four panelists to opine on the constitutionality of the individual mandate requiring all individuals to purchase health care beginning 2014. Two thought the mandate constitutional; two did not.

John Yoo, a former official at the U. S. Department of Justice and presently a law professor at the University of California, Berkeley, predicted that the U. S. Supreme Court would rule “5 to 4” against the constitutionality of the mandate.

Stephen Markman, now Justice on the Michigan Supreme Court, did not make a prediction, but implied hope that the mandate would be ruled unconstitutional. He argued that never in its history has any federal court ruled that the Commerce Clause permits the government to regulate economic inactivity and to require all individuals to buy a certain private sector product or service.

Mark Hall, professor of law at Wake Forest University and a conservative, predicted that Justice Antonin Scalia would rule the individual mandate constitutional. He based his view on what he had learned in taking a law class from Scalia and on Scalia’s position in the Raich case (2005).

Angel Raich argued that she grew marijuana in her own back yard for personal medical use only. Nonetheless, Scalia sided with the majority against Raich, concurring that her personal, noneconomic, noncommercial activities, “taken in the aggregate, substantially affect interstate commerce” and therefore can be regulated by the Commerce Clause. If others grew marijuana, in the aggregate commerce in the future would emerge.

Sanford Levinson, professor of law at the University of Texas, also believed that the individual mandate would be ruled constitutional. He based his view on the Raich precedent and on a “rational basis.” He told me in the hallway that individuals who do not purchase health insurance should be “banned from medical treatment.” When I responded, “What about those individuals who do not purchase health insurance, but are willing to pay out of their own pockets for any medical treatment?” He responded that such was not possible, that such an individual would still be subsidized by the medical system. No individual could defray all establishment expenses required for that individual, e. g., mortgage, utilities, and countless other expenses.

If Levinson is accurate in his prediction on the mandate, the Commerce Clause, owing to future aggregates, will be used by the government to regulate all human enterprise and activity or even inactivity. As Justice Markman said to me, “There goes federalism.” There go states’ rights and individual rights.

The framers did not intend such an expansion of the Commerce Clause. Their focus at the time was on the Thirteen Colonies’ printing their own money, raising their own armies, and restricting trade only within their own borders. The aim of the framers was to open trade “among the several states,” not to control all of human exchanges.

There is a ray of hope for those of us who think the individual mandate unconstitutional. Florida District Judge Roger Vinson declared on September 14 that he will allow some aspects of the lawsuit by 20 state attorneys general to go forward. U. S. Department of Justice officials had hoped for a dismissal of the case, arguing that it lacked standing until 2014. Vinson says that he will render his initial decision by October 14.