Health Care Mandate

I've done some more media lately on the constitutionality of state laws that purport to exempt a state's citizens from the new federal health care mandate, which has led to more e-mails on this topic. I've already given a more detailed explanation of my point, but there's obviously a lot of interest in this issue, so let's go over it again.

First, here's a link to an article by Jack Balkin of Yale, which appeared in the New England Journal of Medicine, explaining in more detail why the health care mandate would be constitutional. As Professor Balkin explains, there are several constitutional bases of congressional power to impose this mandate.

The health care mandate is structured as a tax. It doesn't actually require people to buy health insurance; it taxes them if they don't. Congress has the power to "lay and collect taxes." And Congress is constantly using the tax code to incentivize or disincentivize behavior for social policy purposes -- there are all kinds of tax breaks and tax penalties for doing or not doing something. So using the tax code to incentivize buying health insurance would be in keeping with what Congress does with the tax code all the time. So Congress's taxing power supports the health care mandate.

In addition, Congress has the power to "regulate commerce . . . among the several states," and it also has the power to do everything "necessary and proper" to make its regulation effective. Remember that the main point of the health care bill is to prohibit insurance companies from discriminating among customers based on pre-existing health conditions. In order to make that prohibition effective, an individual health care mandate is necessary. Otherwise, healthy people wouldn't buy health insurance until they got sick. Only sick people would buy health insurance, and the health insurance companies would all go bankrupt. So the commerce power, combined with the "necessary and proper" power, also supports the health care mandate.

It's true, as my e-mail correspondents note, that the commerce power applies to interstate commerce. But this power has been interpreted broadly, and it has been understood to cover matters that "substantially affect" interstate commerce. Health care is commerce (in fact, it is one sixth of our national economy), and there can be no doubt that the primary goal of requiring insurance companies not to discriminate based on pre-existing conditions would substantially affect interstate commerce.

So that's why I would predict with pretty strong confidence that the individual health care mandate will be held constitutional by courts, although, as I have remarked before, the argument is not a 100% slam dunk and different views are possible. Suits challenging the new law's constitutionality have already been filed, which is perfectly proper. By all means let these suits go forward and we'll see what the courts say.

The other point, which is the main one that I have been making in the media, is that, in determining whether the health care mandate is constitutional, state law is irrelevant. And that really is a slam dunk.

If the health care mandate is constitutional, it trumps state law because, under the Constitution, federal law is the "supreme law of the land." So, again assuming the mandate is constitutional, no state can exempt its citizens from the mandate.

Of course, as noted above, it is conceivable (thought not, I think, likely) that the mandate is unconstitutional. If so, it's ineffective. But it would then be ineffective everywhere, without regard to what any state's law says about the matter.

So maybe the individual health insurance mandate is constitutional and maybe it's unconstitutional. I think it's constitutional. But in any event, no matter how you look at it, state law is irrelevant. The states that have passed laws that purport to exempt their citizens from the mandate are grandstanding. They must know that those laws are ineffective. If they want to challenge the federal mandate, by all means let them do so. We'll see what happens. But passing a state law about it is not the right means to challenge the mandate and will have no impact on whether the mandate is upheld.