Is the Mandate Really “Essential?”

By Greg Scandlen

A recent column by George Will brought to my attention a new paper by Mark Hall on the constitutionality of the individual mandate in the University of Pennsylvania Law Review.

Will does a nice job of rebutting Hall’s central argument, by writing:

Mark Hall of Wake Forest University, in an article for the University of Pennsylvania Law Review, says there would be constitutional “uncertainty over the mandate in isolation.” But it is “inextricably intertwined” with Obamacare’s “other insurance regulations” — e.g., those pertaining to preexisting conditions — “which indisputably are constitutional.” So the “strongest defense” of Congress’s power to enact the mandate is “the acknowledged undesirability, if not impossibility” of the regulations regarding preexisting conditions, absent the mandate.

Hall says that the mandate “meets a high threshold of necessity to accomplish the overall reform scheme, clearly within congressional power, to create a market structure in which no one is ever again medically uninsurable.” But unless we postulate that Congress has whatever power is required to create such a market structure, this question remains: Does the fact that Congress has the constitutional power to do X — say, guarantee universal access to insurance — make Y constitutional merely because Y is necessary for doing X?

Congress has the constitutional power to combat political corruption, the “appearance” thereof and the “circumvention” of laws for this purpose. But suppose Congress, exercising this power by regulating campaign finances, decides that abridging freedom of speech is necessary for its anti-corruption measures. This necessity, defined by this preference, does not make such abridgement constitutional. The Supreme Court said as much concerning McCain-Feingold.

That is fine as far as it goes, but I want to make a different point – is the mandate really “essential” to the other insurance “reforms” in the bill? The Obama Administration and it supporters certainly argue that it is, but we have seen that this administration never lets evidence stand in the way of their political ambitions.

In fact, there is plenty of real-world evidence that contradicts the argument. These are the insurance markets in New Jersey, New York and several other states that have adopted community rating and guaranteed issue in their insurance markets.

It is true that those provisions create their own problems, but health insurance continues to be available in those states, even without a mandate to purchase. Ipso Facto – a mandate is not “essential” to the workings of community rating and guaranteed issue.  Case closed.

Yes, these provisions create problems, especially that costs rise dramatically. But the mandate itself also causes problems. So whatever is done by the regulators will not be problem-free. Congress has chosen a set of policies that will aggravate these problems. That Congress has chosen one set of problems over another set of problems hardly supports the idea that it can therefore violate the Constitution.

But there are several other ideas in Hall’s paper I want to address. These are found in the first few paragraphs of his paper, which are rife with fuzzy thinking.

He writes:

Congress clearly  would  have  authority,  if  it  wanted,  to  enact  a   single-payer socialized insurance system, using its power to tax and spend “for the general welfare.”

Yes, indeed, it could do that. Why did it not? Because there is no political support for such a program. It decided instead to hide its intentions behind a façade of illusions. This dishonesty hardly supports the constitutionality of its actions.

Hall also writes:

The idea for an individual mandate originated from Republican lawmakers, who never questioned its constitutionality until now.

This is a peculiar argument that says more about Mr. Hall’s political orientation than about any substantive arguments. Mr. Hall seems to believe that all Republicans are required to think alike.  His support for the notion comes from a bill that was introduced in 1993 and an op-ed by Bill Frist from 2009. From that, he concludes that no Republican has ever questioned the constitutionality of an individual mandate.

He continues:

… considering the well-understood economics of health insurance, a mandate to purchase insurance is obviously part and parcel of regulating how insurers design, price and sell their products.

We dealt with this above. Apparently, the “well understood economics” were not well understood by legislators in New Jersey, New York and all of the other states that routinely regulate “how insurers design, price and sell their products.” Indeed, while every state in the Union issues such regulations, only one (Massachusetts) has decided to mandate purchase.

So, the mandate is not “essential” to the regulations of the law, and the states have been issuing such regulations for half a century without mandating coverage, even though they, unlike Congress, are constitutionally able to do so.

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5 Responses

  1. […] Is the Mandate Really “Essential?” Posted on March 15, 2011 by gmscan […]

  2. Greg- Please read WSJ (today) “New Efforts to Simplify End-of-Life Care Wishes. Medicaid & Medicare should require POLST forms (database) for health and spiritual reasons!

    National HealthCare Decisions Day–April 16th NHDD.org

  3. Unfortunately, Mr Hall’s point of view reflects that of Liberal judges, apparently, in that the Liberal federal judges basically said the mandate is okay (constitutional?) because it is necessary while the Conservative judges said it was not constitutional. I thought these judges are supposed to determine viability according to the US Constitution, whether it is needed or not. If they wanted to debate that, they should run for Congress!

    • Harv,
      I think the various decisions have less to do with the politics of the judge and much more to do with the quality of the plaintiffs. The decisions that have supported Obama were in cases that were not well-reasoned or well-argued. The two decisions that opposed Obama were based on very powerful arguments by state AGs.
      Greg

  4. The presumption that the mandate is constitutional because it is ostensibly an essential part of the healthcare law seems like an insane reach (before Greg even makes his point).

    Placing such value on a piece of legislation that may be the most controversial law ever passed in this country reveals an unmitigated arrogance on Hall’s part (and those of his ilk), and demonstrates exactly why the Constitution is written as it is and how it is to protect us. How brazen that this guy thinks that the healthcare bill is more important than and essentially overrides Constitutional law. It would be laughable if it weren’t so serious.

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