First, I'm not going to go into whether the constitution, properly interpreted, allows for the type of health care reform that just passed the Senate (it still has to go into joint conference with the House and be re-passed by both houses). I'm not talented enough to figure out whether I endorse originalism, "plain text" interpretation, or the idea of a "living constitution." (I do have some respect for the notion of a "don't-rock-the-boat-so-much-that-the-whole-republicke-falls-apart," which perhaps is akin to a "living constitution" approach.)
Second, I'm more concerned with, when the health care reform is challenged in the federal courts, which, if it passes Congress, it almost certainly will be.
So, even though I'd like the health care reform to pass, with all its faults (I've heard it called "health insurance reform" because it doesn't really reform the actual providing of health care but only reforms how people can get insurance....six of one if it means more people being covered), here are the reasons I think the reform might be unconstitutional:
- The universal mandate, as a mandate, strikes me as unprecedented because it requires people to do things rather than, for example, forbids them from doing certain things. In other words, if one meets a certain income level (past which that person is excused from the mandate), then one must buy insurance. In other words, this has whiffs of "involuntary servitude." One might counter this claim by saying that other "mandates," such as compulsory jury service, compulsory process to testify in court or in front of government committees, and, perhaps the most egregious or at least most invasive for those involved, the peacetime military draft, have been deemed constitutional by the courts. My response is that the first two are so "ancient" and accepted in practice that they are practically ingrained in anything the Supreme Court is likely to uphold. The third, I believe, would not again be upheld in peacetime.
- The mandate, viewed as a tax, and not as a mandate, might run into two potential hurdles. The first hurdle is that it could be construed as a direct capitation tax and not, for example, as an income tax. In other words, my reading of the 16th amendment is that only income taxes, and not capitation taxes, are excused from the requirement that taxes must be levied based on each state's population. In other words, the sum total of taxes taken from one state must be proportionate to that state's population so that, on average, each person would pay about the same tax. At least this is my understanding of the 16th amendment.
- The second hurdle is the means for which any tax may be levied. A tax cannot be levied to pay for something that would otherwise be constitutional. Article I, section 8, clause 3 of the constitution gives congress the right to regulate interstate commerce, and if this health care reform is seen as a regulation of interstate commerce, then it would be constitutional. However, if it is seen as managing people's access to health care in a way that is non-commercial (whatever that means), then it stands a chance of being declared unconstitutional. (I'm not saying it's properly a regulation of commerce, only that I suspect 5 justices might claim that it's not).