Legal Commentary

?Is the Personal Mandate to Buy Health Insurance Unconstitutional??

By Eugene Volokh

That?s the title of a Heritage panel coming up in D.C. this Wednesday, December 9, 12:30 to 1:30 pm. The panel will begin with introductory remarks by Sen. Orrin Hatch (rumor has it that he?s a reader of this blog, though I can?t personally vouch for that), and then a discussion between our own Randy Barnett and me. Randy will argue that the personal mandate is unconstitutional; I?ll express some skepticism about that, though I?m not firmly confident of the answer. Here?s a paragraph from the Heritage e-flyer summarizing the question:

Can Congress require all Americans to buy a new Buick every year or pay a tax equivalent to the price of a used LeSabre? Some members of Congress claim that power in the health care debate. Indeed, all the leading health care bills being debated in Congress require Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated to cost up to $15,000/year for a typical family. Such a purchase mandate has never been attempted. The purpose of this forced purchase, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize the coverage for others. Sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or through the gimmick of unconstitutional tax penalties. The sponsors have struggled to analogize and justify the mandate under existing federal laws and court decisions, but those efforts all fail under serious scrutiny. Senator Orrin Hatch and a growing number of Congressmen argue the mandate is unconstitutional as a matter of first principles and under any reasonable reading of constitutional precedents, and it is very unlikely the Supreme Court would devise or extend current constitutional doctrines to save them.

Full post as published by The Volokh Conspiracy on December 07, 2009 (boomark / email).