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Is Mandatory Health Insurance Constitutional?

Akhil Amar v. Rob Natelson

Categories > Health Care

Discussions - 4 Comments

thanks for the information, your blog is very good and interesting

doesn't really give us FREEDOM does it

Of course mandatory health insurance is constitutional.

In France.

Thanks for this link...useful for a Pol Sci teacher like myself.

Look, it is constitutional the same way abortion-on-demand is: bad decisions wrong about the constitution have authoritatively declared it to be constitutional.

From my limited knowledge, the most relevant case would Wickard v. Filburn.

But conservatives ought to be warned before they make this their next slogan-producing hobby-horse: whereas the bogus constitutionality of the right of privacy on which Roe v. Wade is built upon is quite clear, and relatively easy to undo (just kick the issue to the states) interpreting the commerce clause correctly is a much trickier affair--see Christopher Wolfe's discussion in The Rise of Modern Judicial Review. Worse, to go back to the pre-FDR court position (which again, as Wolfe shows, has inconsistencies) on interpreting the clause would call vast chunks of the entire federal code into question--i.e., it would entail RADICAL change of our economic system. I.e., I don't think sound originalism (plus a commitment to judicial restraint) justifies going back to the old "dual federalism" system. And, to do so would likely be economically cataclysmic.

I support the decisions to limit the commerce clause authority in the Lopez and Morrison cases...and I might be open to supporting a case that did it with mandatory health insurance purchasing. But Lopez and Morrison essentially are trying to establish some outer limits to commerce clause power. Once you move further in, i.e., wherever any commercial activity is directly involved, it gets much, much harder to know how to decide these cases. That is, harder to see how you can overrule Congress without logically committing yourself to a radical insistence upon dual federalism, an insistence that was always quite questionable.

So don't get carried away here. Perhaps a SC that declared that Wickard was wrongly decided could consistently overrule mandatory purchasing. But the present SC won't do this, nor will Dem representatives consider this argument as grounds to vote against the bill.

Natelson is right about what the founders intended, but notice that he carefully brackets that subject at the very beginning of his piece. Nowhere does he lay out what the consequences for the federal code would be if we tried to return, via SC-over-rulings, to dual federalism. Nowhere does he get into the key 30s and 40s decisions on this and tell us where he comes down on them. He goes after Amar's low-lying fruit, but does not sketch out how a SC in our day might over-rule Mandatory Purchasing without also overturning those 30s and 40s precedents (IMO, this probably could be done). This is not so much to Natelson's fault--he has rebuttal work to do here--but tea-party types should look at this commerce-clause stuff very carefully before putting in front-and-center on their agenda. Limited push-backs against the post-30s commerce clause can be tired and may work; but conservatives should remain skeptical, for pragmatic and constitutional reasons, of radicalism 'round the flags of dual federalism and the 9th and 10th amendments.

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