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Are health mandates unconstitutional?

From NBC's Doug Adams
This weekend in the Wall Street Journal ,Sen. Orrin Hatch (R) co-authored an op-ed arguing that the health-reform bill passed by the Senate and House may be unconstitutional.

The main argument: The "individual mandate" for health insurance is unconstitutional because there is no power granted to Congress in the Constitution to require Americans to spend their money to purchase a good or service (in this case, health insurance.)

This is an argument that has been kicking around in conservative legal circles for several months now, and senators have occasionally made mention of it on the floor. Now some Republicans are considering a Supreme Court challenge if the bill becomes law.

While President Obama has defended a health insurance mandate by comparing it to the requirement to buy car insurance, conservatives point out they are not the same. State laws requiring car insurance are legal because states have far reaching powers to make law (to protect public health and safety for example), while the federal government's authorities are more limited.

Here's how the conservative legal argument goes: Congress must be able to point to one of its constitutional powers as the authority for any legislation it passes. Critics say Congress' powers to tax and spend don't apply because the mandate neither taxes nor spends. The other constitutional power granted to Congress is the authority to "regulate Commerce ... among the several states" -- commonly referred to as the "commerce" clause.  While this power has traditionally been given a broad definition by the Supreme Court, it has been narrowed in recent years. 

Conservative legal scholars argue that a mandate to purchase health insurance is not "interstate commerce," because there is no economic action. They say it is merely an attempt to dictate personal behavior. While the Supreme Court has upheld laws under the commerce Clause that involve private citizens voluntarily choosing to engage in economic activity, this is "coercing" economic activity, they argue, not regulating it.

Liberal legal scholars counter that a health insurance mandate is most certainly constitutional. They argue that health insurance both affects, and is distributed through, interstate commerce. They also argue that health insurance is sold by national or regional insurance carriers -- making the purchase of insurance policies, by definition, "interstate commerce."

However, the Congressional Research Service isn't so sure. It looked at this issue last summer and concluded that it is "unclear" whether the commerce clause would give Congress power to mandate health insurance. "Whether such a requirement would be constitutional ... is perhaps the most challenging question posed by such a proposal, as it is a novel issue ..."

Other liberal legal scholars say that depending on how the insurance mandate is structured, Congress' Article I Sec. 8 power to tax and spend could give authority. Yale Law School professor Jack Belkin argues that if the mandate is administered through the tax code -- on IRS forms -- taxpayers would have to submit evidence of adequate insurance or pay a penalty. This, Belkin argues, would be akin to Congress placing a tax on people who don't buy insurance. He says it's like Congress raising money for environmental programs by taxing polluters. "Congress is entitled to raise revenues from persons whose actions specifically contribute to a social problem that Congress seeks to remedy through new government programs," he concludes.