The Individual Mandate: Ruled Unconstitutional

by Pejman Yousefzadeh on January 31, 2011

The ruling represents an increasing realization on the part of the courts that the use of the Commerce Clause, and relatedly, the Necessary and Proper Clause–both found in Art. I, Sec. 8 of the Constitution–to justify the health care reform package that the President signed represents a vast overreach of the powers of the federal government. Never before has Congress passed a law, signed by the President, stating that pursuant to its powers under Art. I, Sec. 8, it may compel citizens to buy a product from private companies. No surprise; such a notion is ridiculously unconstitutional, and yet, it is the foundation upon which health care reform was designed and implemented.

It is my hope that the Supreme Court will indeed consider this case. The question of Congress’s reach on this issue must be resolved once and for all, and the Supreme Court should affirm lower court rulings stating that Congress’s power is limited, and should not extend to the enactment of existing health care reform legislation.

More from Ilya Somin, who has it quite right–I think–with the following:

As [Judge Roger] Vinson explains, both the “economic decisions” argument and the “health care is special” argument ultimately amount to giving Congress the power to mandate virtually anything, and therefore conflict with the text of the Constitution and Supreme Court precedent. I addressed both arguments in more detail here. Judge Vinson also notes that the scenarios he raises are not merely a “parade of horribles,” but have a realistic basis, a point that I discussed in this recent post.

Turning to the Necessary and Proper Clause, Judge Vinson concedes that the individual mandate is “necessary” under existing Supreme Court precedent, but argues that it isn’t “proper” because the government’s logic amounts to giving Congress virtually unlimited power. I think this is exactly right; Vinson’s analysis is actually very similar to my own in this post (which is not to even suggest that he got the idea there).

Vinson also notes that the mandate probably runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock, though he ultimately does not base his ruling on this point. I advanced a similar interpretation of Comstock and its implications for the mandate case in this article (pp. 260–67). Overall, Judge Vinson’s analysis of the Necessary and Proper Clause is a big improvement on Judge Henry Hudson’s performance in the recent Virginia ruling striking down the mandate.

Unlike Judge Henry Hudson in the Virginia case, Judge Vinson ruled that the mandate is not “severable” from the rest of the health care bill, and therefore invalidated it in its entirety. I think this may be somewhat too sweeping. However, Vinson is on strong ground in ruling that the mandate cannot be severed from the bill’s provisions forcing insurance companies to cover people with preexisting conditions. As he emphasizes, the federal government itself has repeatedly stressed this point in the litigation.

(As an aside, literary mavens should–and doubtless will–applaud Judge Vinson’s decision to cite Samuel Johnson’s A Dictionary of the English Language to define the word “commerce.”)

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