The proposed insurance mandate is Constitutional,

[pnwmom]

says Cornell University Constitution Law Scholar.


http://writ.news.findlaw.com/dorf/20091102.html

Although many key details remain to be negotiated, Congress appears poised to enact some substantial reform of American health care that will build on, rather than replace, our patchwork of government, private, and non-profit insurance. The bill that the President signs will likely contain, among other things, an "individual mandate" requiring that everyone obtain health insurance or face a financial penalty. Would such a mandate be constitutional?

In my last column and an accompanying blog entry, I considered and rejected the objection that an individual mandate would be an unprecedented burden on liberty because it would affirmatively direct conduct, rather than either forbidding conduct or imposing affirmative obligations on only those who engage in conduct that the government has the power to forbid. As I explained, there are substantial precedents for such affirmative obligations and even if there were not, there is no reason in principle why an affirmative duty is a greater restriction on liberty than a prohibition or condition.

In this column, I consider a different objection to the individual mandate: the claim that the federal government lacks the authority under the Constitution to impose the mandate or to penalize those who do not comply. As I explain, this objection is also unsound as a matter of constitutional law. I conclude, however, that individual members of Congress ought to decide for themselves whether regulating health care in the manner of the proposed bills is an appropriate job for the federal government, or instead should be left to state regulation or the market.

SNIP

Accordingly, it would be perfectly appropriate for one or more members of Congress to vote against the individual mandate or health care reform more broadly on the ground that they think such matters should be left to state regulation or to private decision makers. But it would be equally appropriate for Congress to conclude otherwise and thereby join the ranks of the other industrialized countries--including those, like Canada and Germany, with robust commitments to federalism--that have comprehensive national health care systems. Properly understood, the constitutional case law is no obstacle.

Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

[Coyote_Bandit]

1. So?

Lots of things are Constitutional that are not good ideas or good things to do......

If a high deductible catastrophic coverage only policy meets the mandate then the individual holding the policy remains underinsured and lacking in meaningful access to healthcare. And if that policy doesn't meet the mandate and the individual cannot afford the policy that does then they are in even worse position - uninsured and facing penalties.

The proposal currently under consideration is a clusterfuck destined to ultimate failure even if enacted.

[pnwmom]

2. A number of people here and in the media have been throwing the opposite idea around.

Without any analysis to support their opinions.

[anigbrowl]

3. I find his analysis deeply spurious and obfuscatory

He ignores the primary argument against a mandate, which is that it amounts to a form of capitation, which is expressly prohibited by the Constitution. I'm all for nationalized healthcare, in fact single payer, but I think it ought to be financed via income tax, not a mandate to purchase insurance.

Even if a mandate were eventually approved by the supreme court, it's going to be challeged that day after it becomes law and that challenge will take time to work its way up, during which nobody is going to want to commit (to implementing the reforms at federal, state, or within businesses) because they will rightly be uncertain of what they are committing to until a final supreme court ruling.

It's not about whether the government should be or can be involved in regulating and/or delivering healthcare, the existence of medicare and other programs already shows this is legally tenable. But an individual mandate on private individuals to enter into a fiscal contract (ie, buy an insurance policy) is something that does not exist at present, and whose approval by the court is far from assured.

He is obviously a smart guy, so to sidestep this entire question smacks of disingenuousness.

[pnwmom]

4. He points out that most of the bills do not actually mandate the purchase of

insurance; rather they impose a tax. From the same link:

After all, in most versions of the individual mandate, Americans are not literally required to purchase health insurance: Instead, they are told to pay a tax from which they can be exempted if they have health insurance.

To be sure, as Casey and Rivkin observe, a 1922 case, Bailey v. Drexel Furniture Co., holds that Congress may not use taxation as a pretext for accomplishing a regulatory objective that it could not accomplish directly. But subsequent cases upholding "occupational taxes" on businesses that Congress clearly intended to discourage, have made clear that a tax that serves a revenue-raising purpose is not invalid simply because it also serves a regulatory purpose. And there is no doubt that the tax on uninsured income earners would serve a valid revenue-raising purpose--namely, to defray the costs of subsidizing health insurance for those who could not otherwise afford it.

Thus, even if Congress lacked the power to adopt the individual mandate under the Commerce Clause, the taxing power would separately authorize a properly-worded tax on the uninsured, despite its regulatory impact.

SNIP

[anigbrowl]

5. Yes, and that's why it is unconstitutional

Please familiarize yourself with the concepts of capitation and poll taxes, which are in article 1 of the constitution.

One might also note that a 'tax on uninsured income-earners' is rather different from and individual mandate, which creates a liability simply for being a citizen, even if that liability is defrayed by a subsidy for the less well-off. Poll taxes are both fundamentally unjust, and politically radioactive (ask Margaret Thatcher; her support of a poll tax led to riots in the streets and forced her eventual resignation).

It's about the most regressive kind of taxation there is, and the whole concept of a mandate is basically an ass-kiss to republicans because it's a way to get out from under accusations of socialism. since the GOP has demonstrated that it's going to call everything socialism and vote against it anyway, the idea of the mandate can now safely be done away with.

[pnwmom]

7. I think this law professor has heard of the concept of capitation. n/t

[anigbrowl]

11. Then he should address it in his article instead of examining sideshow arguments. .nt

[pnwmom]

12. That was the subject of his original column on the subject, which you

can read here:

The Constitutionality of Health Insurance Reform, Part I: The Misguided Libertarian Objection

http://writ.news.findlaw.com/dorf/20091021.html

[inna]

8. +1. excellent post, thank you!

:thumbsup:

[excess_3]

6. the punishment isn't ...nt

[kenny blankenship]

9. It will make a nice trial

[optimator]

10. guess ill go to prison then

fuck mandates