Are Federal Health Insurance Mandates Constitutional?

Dec 11, 2009

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by Rob Natelson

The issue I find most troubling is whether there will be any courts left willing to uphold the Constitution.  From their fear of hearing Obama’s eligibility it seems that they too, are part of the oligarchy behind the curtain pulling the strings on Opuppet. Random thoughts while observing the passing parade, J.C.


There have been some on-line discussions recently of whether a federal mandate that individuals obtain health insurance would violate the U.S. Constitution. This issue is distinct from the issue of whether other sorts of government health programs – such as single-payer – would be constitutional.

It is also distinct from whether states can impose insurance mandates. They can: States have general governmental powers. But the federal government has only the powers enumerated (listed) by the Constitution.

Let us be clear at the outset that federal involvement in health care (except in a few isolated instances, such as federal employee benefits) certainly violates the Constitution as that document was originally understood.

I have now spent nearly twenty-years of my life researching and publishing scholarly studies on the Founding-Era record, and I have found no significant evidence that those who wrote and ratified the Constitution thought federal power would extend to health care. Quite the contrary: When the Constitution was being promoted to the public, one of the big selling points was that regulation of all such matters would remain exclusively with the states.

So for those who subscribe to the widely-held view that the Constitution, like any other legal document, means today what it meant when adopted (aside from amendments), there is no real question: Federal health care mandates are unconstitutional.

The more-discussed point, however, is whether such mandates are within the federal government’s authority as that authority is applied by the Supreme Court today. More specifically, does the mandate qualify under Congress’s Commerce Power as a law “necessary and proper for carrying into Execution” the power “To regulate Commerce . . . among the several States. . . ?”

Recent Supreme Court cases are split between (1) those that hold that a law qualifies if it regulates an activity that “substantially affects” interstate commerce and (2) those that hold that a law qualifies if Congress could rationally believe that the activity “substantially affects” interstate commerce. Because of changes in personnel on the Court, it is not clear which standard the Court would apply. Of course, everyone agrees that health care activity as a whole “substantially affects” interstate commerce.

Nevertheless, federal health insurance mandates face at least two difficulties meeting either of the modern Court’s standards for the federal Commerce Power. The first is that just doing nothing — not buying heath insurance — is not an “activity.”

In a famous case relied on by those who think mandates are constitutional, the Court upheld application of maximum acreage legislation to a farmer who kept the wheat sold on his “excess” acreage for his own use. But in that instance, the farmer was engaged in a commercial business, and sold much of his product on the open market. In another case similarly relied on, the Court extended the Commerce Power to people who grew, exchanged, and used medical marijuana. But, again, in that case those regulated were actually engaged in activities that could be regulated.  Complete Story

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4 thoughts on “Are Federal Health Insurance Mandates Constitutional?

  1. If the Supreme court ever were to say it was constitutional they should find they could logically be found guilty of treason. It is patently unconstitutional, anyone can read the constitution and find it to be.

  2. The answer to the question is, NO.

  3. The defense of the ICC’s justification for health insurance mandates rests on the argument that the uninsured cause undue costs and interference with interstate commerce. However, the argument is completely untrue. The reason the democrats wanted to force people to buy insurance they can’t afford, and more coverage than they even need, is so the industry can have an extra $50+ billion a year in new revenues. The mandates fly in the face of calling this a health reform bill, and their very presence manifests that this bill only perpetuates the status quo of a bloated system.

    Further, the question shouldn’t only be whether or not the ICC or other amendments justify forcing citizens to buy some arbitrary good (for a corporate/union welfare project). The question is also whether or not it is a violation of other civil rights which defend personal autonomy and responsibility. I think the most direct suit that could challenge this pork bill would be based off of the equal protection and due process clause: if people are to be forced to buy insurance, then the unhealthy must pay more for their added costs to the system, just like state-level car insurance operates with regard to irresponsible drivers.

    • Well written and interesting take on your comments. I have a different take, this is all going to end up a single payer system making the $50 billiion you suggest irrelevant in the not to distant future if this dog isn’t put to sleep. What are your thoughts? Thanks for the post, I’m Jim

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