Constitutionality of health overhaul questioned

On top of all the other obstacles facing President Obama in his quest to pass health reform is this one: Does the U.S. Constitution allow the government to require uninsured Americans to buy medical insurance or impose a tax penalty if they refuse?

Congress has never before required citizens to purchase any good or service, but that is what both House and Senate health bills would mandate.

While this debate has been overshadowed by other issues involving the plan’s nearly $1 trillion cost and its government-run option, the constitutional argument strikes at a pivotal part of the health care plan’s finances. To make a government-run health care plan work, the nation’s largely uninsured young adults would need to be covered to help subsidize medical care for older and typically less-healthy Americans, legislators say.

House Speaker Nancy Pelosi dismissed the complaint Thursday when she was asked by a reporter if the Democrats’ health reform proposal was constitutional.

“Are you serious? Are you serious?” Mrs. Pelosi replied.

But House Minority Leader John A. Boehner said the argument could not be ignored.

“I’m not a lawyer, and I’m certainly not a constitutional lawyer, but I think it’s wrong to mandate that the American people have to do anything,” he told reporters at his own press briefing last week.

The question of the mandate’s constitutionality “hasn’t been part of the public debate, but the legal community has been debating it. It’s been on all the legal blogs,” said Michael Cannon, director of health-policy studies at the libertarian Cato Institute. He said “the Constitution does not grant Congress the power to force Americans to purchase health insurance.”

In 1994, the nonpartisan Congressional Budget Office noted that a “mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action.”

“The government has never required people to buy any good or service as a condition of lawful residence in the United States,” the CBO said. The statement was part of an analysis of then-President Clinton’s ill-fated health care reform plan, which also required that all Americans purchase health insurance plans.

The Constitution gives Congress the power “to regulate commerce … among the several states” - a clause that has served as the foundation for broad economic regulatory and taxing powers claimed by the legislative branch.

But Randy Barnett, a professor at Georgetown University Law Center, asks, “Where in the [Constitution] is the power to mandate that individuals buy health insurance?” His answer: Nowhere.

“The business of providing health insurance is now an entirely intrastate activity” beyond the regulatory sway of the federal government, he said.

Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an Aug. 22 column in The Washington Post that Congress has no constitutional power to tell people what they must buy.

“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,” they said.

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