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Somin on Constitutionality of Mandatory Health Insurance

A CBS News blog entry addresses the question of the constitutionality of mandatory health insurance for Americans, citing the opinions of Professor Ilya Somin on the matter.

Speaking specifically of Gonzales v. Raich (2005), in which a Court majority upheld a federal law prohibiting a woman from growing marijuana for medicinal purposes on the basis of the Commerce Clause, Somin says the decision "seems to all but eliminate the prospect of meaningful judicial restriction of congressional Commerce Clause authority."

"It is extremely rare for the Court to strike down a law that enjoys strong majority support from both the general public and the political elite, and is a major item on the current political agenda," says Somin in a Volokh.com post cited in the article. "Doing that is likely to create a head-on confrontation between the Court and the political branches of government, which the Court will almost certainly lose, as happened when the Court struck down various New Deal laws in the 1930s."

While Somin believes the Supreme Court will uphold mandatory health insurance, he says, "such a law would be unconstitutional under the correct interpretation of the Commerce Clause—or any interpretation that takes the constitutional text seriously."

Is Mandatory Health Insurance Constitutional? CBS News, September 21, 2009. By Declan McCullagh.

Excerpt:

"In their Wall Street Journal op-ed, David Rivkin and Lee Casey take aim at Democratic Sen. Max Baucus' proposal that includes levying a $1,500 annual tax on uninsured Americans. They say: '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.'

"Unfortunately for legal prognosticators, the U.S. Supreme Court has provided no exact guidance. In Gonzales v. Raich (2005), a majority concluded that a federal law prohibiting a California woman from growing marijuana for her own medical use is 'entitled to a strong presumption of validity' -- and authorized by the Commerce Clause -- even if state law permits the medicinal use of cannabis. On the other hand, in U.S. v. Lopez (1995), the court struck down a gun-related law on the grounds that it lacked 'any concrete tie to interstate commerce.'

"Because Gonzales v. Raich is more recent, it's presumably a better glimpse into what the court thinks. (As Justice Clarence Thomas wrote in a strongly-worded dissent siding with the medical marijuana patient named Angel Raich, 'If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers.'"

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