Saturday, February 5, 2011

Toward a limiting test for the health insurance mandate

One of the chief concerns raised about the mandate in the health insurance reform law is the reductio ad absurdum possibilities about where the mandate might lead. The argument is that any logic used to justify the constitutionality of the mandate can be used to justify just about any action by the federal government, and however one interprets the constitution, one must concede that it creates a federal government with limited powers, otherwise, it's not much of a constitution.

This objection is sincere. And those who offer it raise the possibility that if certain constituencies win over a coalition in the Congress and the presidency, a law might be enacted that would mandate behavior that liberalesque people like me would find morally or otherwisely objectionable simply because the mandate would involve articles of interstate commerce or because the federal taxing power would be almost limitless. Here's a list of some of the possibilities I have seen raised:
  • The purchase of broccoli or wheat or other foodstuffs
  • The purchase of guns or other firearms.
  • The purchase of pornography as a marital aid.
  • The imposition of corvee style labor cutting stones in a quarry.
I have listed these, and there may be others, in the rough order ranging from what I see as least to most objectionable, even though I find all, on some level, objectionable.

To answer this objection, it does not suffice to state simply that a coalition in favor of such mandates are unlikely ever to form. Nary a one can foretell what may come.

Nor does it suffice to point out that some version of the first two are already in place: Our tax dollars subsidize the production of certain agricultural products (if not broccoli, then at least wheat or corn). Our federal government already reserves the privilege, and at times of national emergency (even when the emergency was a "cold war" when little if no fighting was done by American soldiers) has exercised the privilege, of forcing young men to carry guns and put their very lives in danger. I would see it as a welcome alternative to be forced to purchase, say, a $1,000 firearm (with a means testing provision for subsidizing the purchase by poorer people) for the defense of the homeland in lieu of forcing people to enter the military. One reason it does not suffice to raise this point is that it could very well be used against the health insurance mandate. One may say "see, the government has already arrogated to itself the right to do these things, and the logic behind the health insurance mandate would only make such power grabs easier and more blatant."

What we (by which I mean those of us who would prefer the mandate to be validated if only because we find it incredible that the rest of the new law would or could stand if the mandate is declared unconstitutional) need is some sort of constitutional test that would allow, say, the health insurance mandate and yet not allow the more egregious extremes to which objectors have pointed. Providing a workable test would, to the extent that it is workable and limiting, answer that particular objection, although I concede it does not answer the overall contention of the opponents of the mandate that it is not a "proper" regulation of commerce, which as I understand it is the principal constitutional objection when it comes to commerce clause grounds. (One has only to read the posts at the Volokh conspiracy on the mandate to see what I mean. Those who oppose the mandate--Messers. Somin, Barnett, and Adler--and those who think it is constitutional under existing precedent--Mr. Kerr--argue on what is considered "proper.")

Here is my stab at the key elements that such a test would have to include in order to be limiting:
  • There should be some assessment of the degree to which the object of regulation affects interstate commerce. I'm already in trouble here. Not only do I not know of any precedent that deals explicitly with "degree" of interstate commerce (the precedents I am aware of involve distinctions either between direct and non-direct effects on such commerce or between "production" and "commerce"--even Wickard v. Fillborn recognizes this latter distinction in theory), simply mandating the purchase of a private product will greatly enhance the degree to which it is involved in interstate commerce. Let's assume, for example, that the purchase of widgets is more or less a local matter, and in order to get one, you have to go to your local widget-smith. If the purchase of widgets is mandated, they will now be sold by a national chain known as "Widgetmart" and therefore make a leap in the portion of the market in widgets that affects interstate commerce. On a more immediate level, most of the items in the reductio ad absurdum are already, to a high degree, commodities in interstate commerce (rocks in a quarry, broccoli, pornography, guns).
  • To overcome, if only partially, the preceding difficulty, I would impose some sort of test comparable to "intermediate scrutiny." The mandate would have to be more than just rationally related to a legitimate, though not necessarily compelling, legislative end (and I am assuming that federal regulation of the insurance industry is per se legitimate as a legislative end), but not so linked as to be the most narrowly tailored and least intrusive means for accomplishing that end (I don't think the mandate could ever survive strict scrutiny.)
  • There ought be no provision in the constitution that forbids the action involved.
I am, in a sense, restating the "M'Culloch test" from John Marshall's 1819 decision:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
Of course, the key point at issue is whether the means, which are admittedly plainly adapted to the end of health insurance reform, are "proper" ("appropriate").

Indeed, after having written the above, I realize that any test I can devise is quite circular and comes out saying "the health insurance industry is unique" in a way that the others are not. Ido think that point 3 would at least avoid the corvee labor because the 13th amendment forbids involuntary servitude (although being compelled to pay a private company for a product is perhaps a form of involuntary servitude as well, and the claim that the IRS is not permitted to use criminal prosecutions to collect the health insurance penalty, if true, does not necessarily allay my fears.)

The best way to address the issue is to legislatively change the mandate and impose some other way of arriving at a similar goal, i.e., providing a way to offset the cost of insuring so many people. (It would be even better to reduce costs all around, something I'm not convinced the reform does in any large-scale or systematic way.) I am coming around to supporting something like an "open enrollment" idea, with exceptions for those who newly find themselves uninsured and with higher premiums that would have to be paid for a limited amount of time by those who wait to buy insurance.

Update 2-5-11: When I referenced the cold war above and said "American soldiers did not fighting," I did not mean that they never did any fighting, only that in addition to Korea, Vietnam, and some smaller conflicts, the U.S. still drafted people when the fighting was not going on.

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