The Reid Individual Mandate: An Affront to the Constitution

Cato chairman Bob Levy and I have an oped in today's Philadelphia Inquirer explaining why the individual mandate in Majority Leader Harry Reid's (D-NV) health care bill is unconstitutional.  (Our colleague Ilya Shapiro blogs about a similar piece by our colleague Randy Barnett.)

In sum, supporters of an individual mandate claim that two powers granted to Congress by the states in the Constitution — the Commerce Clause and the taxing power — give Congress the legal authority to force Americans to purchase health insurance.  We reject both theories.

First, the behavior that Congress seeks to regulate — the non-purchase of health insurance — is neither interstate, nor is it commerce.  Unfortunately, under the Supreme Court's tortured interpretation of the Commerce Clause, that isn't dispositive, so we explain why even the Court's Commerce Clause jurisprudence doesn't allow for an individual mandate.

Second, the individual mandate cannot be justified by pointing to Congress's taxing power, because the tax it would impose is neither an excise tax, nor an income tax, nor a direct tax apportioned according to population.

Game over.  All your base are belong to us.

We've already received many responses to the oped, some of them intelligent.  One reader asks how we can describe the non-purchase of health insurance as "a non-act that harms no one":

We all know that when folks without insurance go to the emergency room, those of us with insurance are harmed in the form of higher premiums.

Originally, we had included a section expanding on our "harms no one" claim that would have addressed this point, but we dropped it for brevity.  Here it is:

Most uninsured people don't end up in an emergency room.  As for those who do, research shows that the uninsured as a group more than pay their own way. Many simply pay their bills without imposing costs on anyone. And because they typically pay premium prices for medical care — far more than is ordinarily reimbursed by public or private insurance — they more than offset the cost of uncompensated care to the uninsured overall, according to MIT economist Jonathan Gruber and others.

Even if we ignore that evidence, uncompensated care to the uninsured accounts for about 2.2 percent of national health expenditures.  The left-leaning Urban Institute writes, "Private insurance premiums are at most 1.7 percent higher because of the shifting of the costs of the uninsured to private insurers in the form of higher charges."  That’s hardly a crisis.

And think about it: an uninsured person is wheeled into an emergency room, unconscious and bleeding.  Is this person able to harm anyone?  Is this person in a position to impose costs on you?  Of course not.

What imposes costs on you are the laws that require the doctors and hospitals to treat those patients without regard to ability to pay — and the ethical codes that would impel doctors to treat them even if there were no such laws.  If you have a problem with those laws/codes, make them the focus of your ire.  If you support them, surely you can't be upset that they increase your premiums by 1.7 percent.  Isn't that a small price to pay to live in a compassionate society?

But if you're still angry about that 1.7 percent, bear in mind that the Reid individual mandate — which is essentially a bailout for private health insurance companies — would increase the cost of insurance for some people by 30 percent and would require additional taxes on top of that.

Fortunately, there are much better ways to reform health care.