On Constitutionality.


I will preface this by saying that I am not a legal scholar, so I don’t intend to spend a lot of time claiming certain things are “unconstitutional” because I don’t agree with them. Obviously, the Commerce Clause and Tax and Spend clauses, which enumerate powers to the Federal government, have been stretched to mean just about anything you want…I’m, of course, not happy with that, but that is a reflection of my preference for more restricted Federal government activity. It is not, however, a reflection of my expert interpretation of the law.

In any case, the debate over the constitutionality of the individual mandate proposed in the health care “reform” bill rages on. It is very hard to find non-partisan analysis of this issue, so I’m kind of left to my own devices. But, there are a couple common threads that keep recurring to support the constitutionality of the individual mandate, and I think they are wrong.

The first is that we’re mandated to purchase auto insurance. Of course, far from being an “obvious analogue“, the Federal government does not mandate auto insurance. In fact, if you happen to be furious at your state’s “draconian legislation” that requires you to purchase auto insurance if you wish to drive, you can simply move to New Hampshire or Wisconsin, where no mandate exists. This is a blatantly foolish argument that I’ve even seen Ezra Klein make on television and on his blog. Apparently, legal scholars, and social scientists also make this argument. So whenever you hear it, remind the person making the statement that the Federal government does not mandate auto insurance.

The second argument is that since Massachusetts already has a mandate, which has not faced constitutional challenge, it shows that the Federal government can institute a mandate. Some obviously annoying people over at ThinkProgress were harassing Mitt Romney about the issue…unfortunately, he didn’t handle it well. Why didn’t he just say that there is a difference between State powers and Federal powers? That states do have the right to mandate insurance coverage — while the Federal government does not. I don’t know if that is “legally” correct; but my intuition, and the Federalist Papers tell me it is.

Diving into psychology; I can’t help but think that bringing these things up, without noting which level of government is actually doing the mandating, is done intentionally. Leftist-liberals wish to centralize power with the Federal government, and don’t think too kindly of Federalism. Using “the government” without identifying the level of government, as weasel words to deliberately confuse people. It’s hard to imagine that intelligent people are stupid enough to accidentally make these mistakes.

Whatever the excuse may be to push through an individual mandate, the economics of the issue state that the penalty for noncompliance would need to be much larger than currently prescribed to actually avoid the adverse selection problem that it’s designed to avoid.

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One thought on “On Constitutionality.

  1. Sorry to say, and I’m no more a legal scholar than you, I think even the conservative SCOTUS we have now would say the Fed has the power to have an insurance mandate–especially if there’s interstate commerce of insurance policy which, in the Senate bill, there technically is.

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