Are health care insurance mandates constitutional?

Absent from the debate about health care reform has been serious consideration of the questionable constitutional authority of the Congess to require American citizens to purchase health care insurance. In August, David Rivkin and Lee Casey, made a strong case in the Washington Post, that these mandates are, in fact, illegal.  First, framing the question,

President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president's proposals. Consider one element known as the "individual mandate," which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

Then the bottom line answer:

In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

For their complete legal arguments, read the rest of the article.

Last week Ken Klukowski, a fellow and senior legal analyst with the American Civil Rights Union, agreed.  From Politico:

But, as other lawyers have correctly noted, there is no constitutional basis for the individual mandate. People who decline coverage are not receiving federal money, so that mandate can’t fall under the spending part of the Tax and Spending Clause.

It also cannot be a tax. The federal government can levy only certain kinds of taxes. Article I of the Constitution authorizes excise and capitation taxes, and the 16th Amendment created the income tax.

It can’t be an excise tax because that’s a surcharge on a purchase, and here people are not buying anything. It can’t be a capitation (or “direct”) tax because that is a tax on every person in a state and must be equal for every person in the state; this would be a levy that some people would pay and others would not. And it can’t be an income tax because that must be based on personal income, not purchase decisions.

All that’s left is the Commerce Clause. And the people who declined to purchase government-mandated insurance would not be engaging in commercial activity, so there’s no interstate commerce. That, in fact, is the government’s problem with them: Those people refuse to take the money or play the game.

Despite this scholarly and credible legal opposition, Nancy Pelosi and Chris Dodd recently dismissed questions about constitutional authority as not serious.  From Dodd (via CNS news)

CNSNews.com: "Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?"

Sen. Leahy: "We have plenty of authority. Are you saying there is no authority?"

CNSNews.com: "I’m asking--"

Sen. Leahy: "Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that."

And Speaker Pelosi, also from  CNS News, via HotAir:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi: “Are you serious? Are you serious?”

CNSNews.com: “Yes, yes I am.”

Madame speaker, Senator Dodd, in the history of our republic, this is as serious as it gets.