Scholars Debate Constitutionality of Insurance Mandate

January 19, 2010

Over on NPR, scholars debate whether the proposed health insurance mandate would be constitutional:

[Florida Attorney General Bill] McCollum wrote fellow state attorneys general and urged them to explore a constitutional challenge.

“I’m assuming there will be a bill that becomes law, and … if it does include a individual mandate, or what I call a living tax, then at that point we have to make a decision: Do we challenge it in court?” he said. “The first step would be to go into federal court and seek that challenge, and I would expect, if that were to be the case, we’d have a sizeable number of attorneys general joining us.”

A legal battle could end up in the Supreme Court. Georgetown University law professor Randy Barnett is already gearing up for that. He maintains Congress would be overstepping its powers enumerated in the Constitution if it required people to buy health insurance.

“Never in the history of the United States has the federal government ever required someone to engage in an economic activity with a private party. It’s never been done, and anything that’s never been done before has no precedent for it,” he said. “It would have to be a new decision by the Supreme Court to uphold this new extension of power. And if they uphold this, then there’s pretty much nothing that Congress can’t do and that’s the end of the enumerated power scheme.”

But William Treanor, the dean of Fordham University’s law school, said he’s confident an individual mandate would be held constitutional if it went to the Supreme Court.

The rest, including other opinions, here. Since the insurance mandate would be unprecedented in its scope and applicability, precedent is not much of a guide. My guess is that most scholars think that the courts are so deferential that they’ll sign off on any legislative scheme cloaked in interstate commerce justifications. I don’t think that’s the case.

Related: Constitutionality of Proposed Bank Tax


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