The Individual Mandate Unconstitutional

David Rivkin and Lee Casey make the case in the Wall Street Journal that the individual mandate at the core of the health care reform bills is in fact unconstitutional.

As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: "[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects." Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution.

Okay, so far so good, although the lesson of limited govenrment does seem to be lost on our current Congress and Administration, but to be fair I can't really blame them, they have power and they want to exercise that power, and their predecessors had steadily increased the power of the federal government despite the dictates of the Constitution.

The enumerated powers that Congress has regularly used to expand federal power has been the commerce power and the spending power. Generally the Courts have interpreted these powers pretty broadly, but as Rivkin and Casey point out, just because Congress says it affects interstate commerce doesn't actually mean that the action Congress has taken is Constitutional.

But the individual mandate is not being clothed as interstate commerce.

Of course, a health-care mandate would not regulate any "activity," such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Health-care backers understand this and—like Lewis Carroll's Red Queen insisting that some hills are valleys—have framed the mandate as a "tax" rather than a regulation. Under Sen. Max Baucus's (D., Mont.) most recent plan, people who do not maintain health insurance for themselves and their families would be forced to pay an "excise tax" of up to $1,500 per year—roughly comparable to the cost of insurance coverage under the new plan.

But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a "tax" that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by "taxing" anyone who doesn't follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.

I think that Congress is indeed overreaching with an individual mandate and a challenge to the law is almost assured as soon as a real case can be raised under the law--should it pass.

While the Courts have generally been generous in interpreting the commerce and spending clauses, I don't think they will be as generous with the taxing power. Therein lies the problem. Congress is going to have to work very, very hard to try and put the individual mandate in to a commerce pigeon-hole rather than a tax pigeon-hole.

But to be fair, I don't think either the taxing or spending or commerce clauses are going to save the individual mandate.