Making the Health Insurance Mandate Constitutional

As was the story last week when President Obama signed the health care financing overhaul in to law, 14 states rushed to a U.S. District Courthouse and filed suit on the constitutionality of the individual mandate among other things. Today, in a USA Today column, Jonathan Turley discusses the issue of constitutionality as well.

To date, 14 states have joined the stampede to the courthouse to challenge the legislation. One of the most contested issues is the so-called individual mandate under which Congress has ordered all citizens to get medical insurance or face fines. Though the federal government has the clear advantage in such litigation, these challenges should not be dismissed as baseless political maneuvering. There is a legitimate concern for many that this mandate constitutes the greatest (and perhaps the most lethal) challenge to states' rights in U.S. history.

With this legislation, Congress has effectively defined an uninsured 18-year-old man in Richmond as an interstate problem like a polluting factory. It is an assertion of federal power that is inherently at odds with the original vision of the Framers. If a citizen who fails to get health insurance is an interstate problem, it is difficult to see the limiting principle as Congress seeks to impose other requirements on citizens. The ultimate question may not be how Congress can prevail, but how much of states' rights would be left if it prevailed.

Which begs the question, if the overhaul's individual mandate is unconstitutional, could the solution to that problem be solved by permitting one of the most sought after reforms from the GOP, buying insurance across state lines?

As we all know by now, an individual purchasing health insurance cannot do so across state lines. If you live in Maryland, like me, you cannot buy insurance even from Pennsylvania or Virginia, even though both states are less than a 30-minute drive from my house. That holds individuals hostage to your state's insurance mandates for coverage of services. For example, a single man, aged 25, wanting to buy health insurance in Maryland has to buy a product that includes coverages for birth control, pregnancy, hysterectomies, and other conditions that as a man will never affect him. Likewise, a female aged 25 has to have a policy that requires coverage for treatments of testicular cancer--a disease that she can never contract.

Each state has its own set of insurance mandates, some lists are much longer than others, and all are the result of a political decision or other--usually because some politician had a family member or constituent whose insurance company didn't include coverage in their policy.

So the question of an individual mandate being interstate commerce is a tricky one. Yes. many insurance companies operate in multiple states, with lots of different product options. But a person buying insurance, either individually or through their employer is, by definition, not engaged in interstate commerce. People are buying a product designed for purchase in a specific state. Since I cannot buy a health insurance plan from Pennsylvania or Virginia or Wyoming, I am not personally engaged in interstate commerce. Thus, Congress cannot regulate it or require me to do buy it.

But what if Congress actually lifted the prohibition on buying health insurance across state lines? Then, at least in theory, I could buy insurance from any state that would suit my needs. My employer could do the same as well. Then, at least, there is the possibility of interstate commerce that would allow the government to regulate the transactions.

Now, of course, that doesn't address the problem that Congress has created with the mandate on individuals itself. Allowing for the interstate purchase of insurance doesn't suddenly make the bill palatable to me. There is still the problem of the government telling me, under penalty of a fine, that I have to buy a product from a private company (or ultimately the government). But at least as far as giving themselves a justification for exercise of this governmental power, allowing for the purchase of insurance across state lines will go a long way to possibly curing one of the many defects in the health bill.