Arguments that individual mandates are unconstitutional here and here. Arguments that they are constitutional here and here.

From the Baucus proposal¹:

Personal Responsibility Requirement. Beginning in 2013, all U.S. citizens and legal residents would be required to purchase coverage through (1) the individual market, a public program such as Medicare, Medicaid, the Children‘s Health Insurance Program, Veteran‘s Health Care Program, or TRICARE or through an employer (or as a dependent of a covered employee) in the small group market, meeting at least the requirements of a bronze plan, or (2) in the large group market, in a plan with first dollar coverage for prevention-related services as recommended by the U.S. Preventive Services Task Force – except in cases where value-based insurance design is used and cannot have a maximum out-of-pocket limit greater than that provided by the standards established for HSA current law limit. Exemptions from the requirement to have health coverage would be allowed for religious objections that are consistent with those allowed under Medicare, and for undocumented aliens. An individual enrolled in a grandfathered plan would be deemed to have met the responsibility requirement.

1. http://www.opencongress.org/baucus_bill_health_care.html. [↩]

To begin, it is clear that Congress may regulate health insurance under the commerce power. And it is clear that the federal government may tax individuals’ incomes in order to pay for and provide government health insurance. We do these things, in some measure, already.

But now we are contemplating something quite different. In last week’s address to Congress, the President endorsed the notion of individual mandates for health insurance. As a matter of policy, mandates are controversial, but they make sense in light of the President’s proposed regulatory scheme.¹ The question is, though, does the Constitution permit the federal government to directly impose upon its citizens duties of positive action, other than the duty to pay taxes, that are not imposed in connection with some benefit received from the government?

Certainly state governments could impose such mandates. In 1905, the Supreme Court upheld compulsory vaccinations as a valid exercise of the states’ police powers.² Possibly, then, the feds could “persuade” the states into imposing mandates, perhaps by making some Medicaid funding conditional on the states’ enactment of such a mandate—not unlike the manner in which federal highway funds are made contingent on adherence to federal guidelines for speed limits. But, of course, under such a scheme the states would be able to opt out in order to avoid the mandate—not entirely out of the question in today’s political climate (birthers, tea parties, and the like).

And certainly the feds could impose a tax on individuals (those with incomes, anyway) and use the revenues to create government-sponsored insurance for everybody, universal Medicare. But, besides the fact that such a plan is not on the table, it is a distinctly different proposition: you would not be compelled to enroll in or accept benefits from universal Medicare—just to pay for it. Or even you could be so compelled, it would not be the same as compulsory participation in private health insurance markets.

$117

It seems to me that the issue at stake here has a close parallel in the notoriously radical case of Wickard v. Filburn³, where the Court held that a farmer who exceeded his quota for wheat production (under the New Deal’s Agricultural Adjustment Act) could be fined, $117, even though his surplus was entirely for private, home consumption—not in interstate commerce. Filburn is still good law, in the sense that it was never reversed, but the Court has reined in its commerce-clause jurisprudence considerably since the 1940s, particularly in the last twenty years.

The interesting parallel is that farmer Filburn was fined not for selling too many bushels of wheat, but for growing them and not selling them—not for activity in the regulated market, but for activity outside the market (but related to it).

Under an individual mandate system, you might be fined (or forced to pay a tax penalty, which amounts to the same) for failing to purchase health insurance. Not for fraudulently claiming you had insurance, or claiming an extra deduction on your taxes (though these would be punishable, too)—but just for staying home and taking your chances: for “insuring” yourself, as it were, just as farmer Filburn produced for himself.

Or is the better analogy this one: imagine that Filburn, a dairy farmer, hadn’t produced a single bushel of wheat, but the AAA required all farms of acreage equivalent to Filburn’s to produce and contribute 222 bushels of wheat. Now could he be fined? No, we might say, but everyone consumes health care, and everyone has a responsibility to pool her risk and support the redistribution of that risk for the sake of everyone’s welfare, security, and peace of mind. Perhaps, but that’s the answer to a different question.

Everyone should have health insurance. I’m just not sure Congress has the authority to make them get it.

1. The plan is to regulate the individual insurance market by requiring insurers to cover everyone regardless of health status (“guaranteed issue”) and to charge everyone in the community the same premiums (“community rating”). Without a mandate, many health policy analysts believe, guaranteed issue and community rating would cause premiums to rise for everyone, leading healthy, risk-subsidizing people to drop their coverage. [↩]
2. See Jacobson v. Massachusetts, 197 U.S. 11 (1905). [↩]
3. 317 U.S. 111 (1942). [↩]

Obviously, the Heir of Publius has been on extended leave. But today is its first anniversary, and the Constitution’s 222nd. Coming soon: would a federal mandate that individuals buy health insurance be constitutional?