Mar 23 2010
A version of this post was published in the Delaware News Journal on Sunday, March 21, 2010.
Certainly states can make you buy car insurance. But states and the federal government are treated differently under our Constitution. The Constitution enumerates certain powers for the federal government, and then reserves the rest for the states and the people. Since the Constitution does not expressly allocate to the federal government the power to regulate insurance, it has always been the states that have done so. States have also always regulated contract and tort law, public health and safety, the practice of medicine, and most other matters that might have any bearing on the health insurance market.
There is a difference, moreover, between making you buy car insurance and mandating health insurance. We are only required to have car insurance if we choose to drive. The health care bill currently under consideration in Congress, the Patient Protection and Affordable Care Act (the Senate Bill), would make us all buy health insurance just for being alive. And by making us buy insurance it would do something the federal government has not done before: it would effectively mandate a transfer of our personal property (our money) to a private party (the insurance company).
To be fair, the Senate Bill would not exactly force you to buy health insurance. It would simply fine you for not having it, at the rate of $95 in 2014, going up to $750 in 2016 (half those amounts for children; all amounts indexed to income; exemptions and subsidies for those who cannot afford it). The Obama proposal would reduce the maximum penalty to $695.
But of course the size of the penalty is not the issue. The question is whether the Constitution permits the federal government to legislate in an area that has generally been left to the states. A further question is whether the federal government can require you to buy a particular insurance product from a private company.
The answer to those questions is almost certainly yes. And by the same token, the federal government can also make your employer provide you with health insurance, as Congress also proposes.
Although the federal government has only certain enumerated powers under the Constitution, some of those powers are quite broad. The three broadest powers given to the federal government are the powers to tax, to spend, and to regulate interstate commerce. Any one of these powers would be sufficient to support the Senate’s proposal regarding the purchase of health insurance. In addition, the so-called Supremacy Clause in Article VI of the Constitution requires state courts to uphold federal laws, even if they conflict with state laws.
Using its taxing authority, Congress could implement the Senate Bill’s insurance mandate by making you pay a tax for not buying insurance, or by taxing everyone and then exempting those with insurance. The only limitation on Congress’s taxing authority is that a tax cannot excessively burden an individual’s fundamental rights; but there is no fundamental right to be uninsured. (On the other hand, if you could somehow assert that your religion prohibits health insurance you might prevail against a federal insurance mandate; so Congress may need to provide a religious exemption from the mandate.)
Using its spending authority, Congress could make it a condition to federal funding of state programs that states enact laws requiring individuals to buy health insurance, as they do with car insurance. What Congress may not wish to attempt directly, that is, could be achieved indirectly by making the states pass insurance mandates as a condition to receiving funding for Medicaid or other federally supported programs. And Congress can always rely on the Supremacy Clause to pre-empt any state law conflicting with a federal one.
To find a Commerce Clause justification for an insurance mandate, all Congress has to do is show that the health of the nation’s workforce affects interstate commerce, or that doctors and patients sometimes cross state lines to give or receive health care. Given the other things that have been held to affect interstate commerce enough to support federal legislation – crime, education, the environment – health insurance regulation does not seem a stretch.
If you step back and look beyond all the twists and turns of Constitutional logic, the idea that health insurance should be regulated at the federal level makes sense. After all, almost nothing about our basic health care needs depends on what state we live in. Reasonable minds may disagree as to how it should be done, but Congress can – and should – legislate broadly regarding health insurance.
Opinions posted on this blog do not necessarily reflect those of Widener University or its School of Law.