Legal Commentary

Charles Fried on the Constitutionality of the Health Care Mandate

By Ilya Somin

In this recent op ed, Harvard constitutional law professor Charles Fried argues that the Supreme Court?s recent decision in United States v. Comstock proves that the Obama health care bill?s mandate requiring individuals to buy health insurance is constitutional:

A recent 7?2 Supreme Court decision affirming the constitutional power of Congress to allow the indefinite detention of sexually dangerous child pornographers after the end of their federal sentences has the surprising effect of showing just how far-fetched are the constitutional objections to the new health care legislation.

One objection holds that the Constitution?s clauses giving Congress the power to regulate interstate commerce do not give Congress the power to impose a modest penalty (up to about $700) on people who could ? but do not ? buy health insurance.

To see why this is a bad argument, consider the steps by which the Court held that Congress has the power to keep sexually dangerous child pornographers in confinement: The Constitution explicitly gives Congress the power to regulate interstate commerce. And it has long been the law that Congress can forbid commerce in things that might be harmful. Those who traffic (or possess, in the case of child pornography) such things can be prosecuted and imprisoned.

The recent Supreme Court ruling, United States v. Comstock, added that the power to imprison implies an obligation to protect the public from dangerous people even after they had served their sentences. There can be no doubt that insurance, and particularly health insurance, is commerce with interstate effects that Congress may regulate.

For the health regulation to work, though, it is ?necessary and proper?? ? the clause explicitly in play in Comstock ? to nudge (with the $700 penalty) the young and healthy to enter the insurance pool, and not to wait until they are old and infirm.

Insurance just won?t work if you could wait until your house is on fire to buy it. But, say the objectors, this is not penalizing someone for doing something harmful; it?s penalizing him for not doing something, and that?s somehow different.

It is not. Congress has the power to enact the regulatory scheme and to design it in a way that is ?necessary and proper?? to its good functioning, and that means sweeping in the unwilling. 

Fried is mistaken both in his interpretation of Comstock and in his broader argument. Regarding Comstock, he ignores the fact that the Supreme Court upheld the law in question at least in large part because it passed a five part test that the health care mandate may well run afoul of, a point I emphasized here. Unlike the law upheld in Comstock, Obamacare is not ?narrow in scope,? does not ?accomodate state interests,? and arguably is not based on a long history of federal involvement (the feds have long regulated health care, but never by forcing people to purchase products they don?t want. And, as Randy Barnett points out, Comstock does not consider the issue of the meaning of the word ?proper? in the Necessary and Proper Clause. There is a strong argument that the health care mandate runs afoul of that requirement.

Fried?s claim that the mandate can be justified as a ?necessary and proper? adjunct to the regulation of interstate commerce in health care is also problematic. The difficulty, as I explained in this article, is that the health insurance market is not in fact interstate commerce. Under current law, virtually all health insurance purchases are required to be intrastate. Congress may have considerable latitude in adopting mandates that facilitate regulation of interstate commerce. But the same point cannot apply to regulation of internal commerce. If it did, then the combination of the Commerce Clause and the Necessary and Proper Clause would render all the rest of Congress? Article I powers superfluous. After all, virtually any mandate can facilitate the regulation of some kind of commerce in some way. There would be no point to the enumeration of eighteen separate congressional powers in Article I if the Necessary and Proper Clause and Commerce Clause have as broad a meaning as Fried claims.

Fried also briefly addresses the issue of whether the health care mandate is ?proper:?

But even granting Congress?s power under the commerce and ?necessary and proper?? clauses, is it not an offense to constitutional liberty to impose the $700 penalty? Is the mandate not independently constitutionally ?improper???

That objection would complain that such a mandate violates some constitutional liberty even if enacted by a state (as Massachusetts has done). Here again, Comstock is instructive. The convicted child pornographer claimed that he was deprived of his constitutional liberty by continued detention after he had served his sentence, but the Supreme Court had decided many years ago that Kansas could, with proper procedural safeguards, do just that. And if it violated no liberty for Kansas to do it, then neither did it violate any liberty for Congress to do it.

A more telling precedent is the Supreme Court?s 1905 decision in Jacobson v. Commonwealth, which rejected a complaint against Massachusetts?s compulsory vaccination law that it said infringed the ?inherent right of every freeman to care for his own body and health in such way as seems to him best.?? 

Here too, Fried?s argument is unpersuasive. The word ?proper? does not refer only to protection of individual liberties guaranteed elsewhere in the Constitution. If it did, it would be superfluous. The enumeration of those rights elsewhere in the document would protect them against federal infringement even if the word ?proper? did not. Rather, as Randy Barnett explains in this article, ?proper? refers to the requirement that the federal law in question not undermine the constitutional structure of federalism and enumerated powers. The exact boundaries of ?proper? are far from clear. But an interpretation of the Necessary and Proper Clause that gives Congress virtually unlimited power and renders most of the rest of Article I superfluous is surely ?improper? if anything is. 

As I have previously written, I think it is more likely than not that the courts will uphold the individual mandate. The Comstock decision makes that outcome more probable than before. But Fried greatly overstates the significance of Comstock, and his other arguments also have serious shortcomings.

Full post as published by The Volokh Conspiracy on May 21, 2010 (boomark / email).