Constitutional Problems with Healthcare Reform?

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by: Tom Lindmark

The Washington Post has an interesting opinion piece that asks if Congress can constitutionally mandate the purchase of health insurance. The authors’ opinion is they cannot.

President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals. Consider one element known as the “individual mandate,” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

I haven’t seen any other discussion of this matter and certainly nothing has emerged to the best of my knowledge from the hallowed halls of Congress. So, how do they plan to deal with the issue? I assume that given the number of brains working on the bill that someone has raised this question and one would think that they have an answer. It would be nice if they would let the rest of us in on their thinking.

The ultimate irony would be a bill that included the mandate but gets placed in limbo as the lawyers line up on either side to duke it out.