Is it constitutional for the federal government to force people to buy health insurance from private companies?
Conservatives argue it isn’t and that the health-care overhaul proposal being pushed through the Senate this week is fundamentally flawed because it contains a mandate that everyone have health insurance coverage.
The Senate minority intends to force a procedural vote Wednesday on the constitutionality question which they are expected to lose.
But Democrats are certain of the constitutionality of the legislation.
As The Wall Street Journal reports:
“What’s next?” Mr. Ensign said. “Will we consider legislation in the future requiring every American to buy a car? Will we consider legislation in the future requiring every American to buy a house?”
Mr. Ensign isn’t expected to succeed. But the effort dramatizes a criticism raised by Republicans and conservative activists. Under the Senate and House bills, Americans who don’t receive health coverage through their employers must buy insurance if they can afford it.
The “individual mandate” is part of broader legislation designed to expand health-insurance coverage to tens of millions of Americans. The bill offers tax subsidies to purchase insurance and widens eligibility for Medicaid, the federal-state program that provides health insurance to the poor.
Conservative critics contend that the provision violates the Constitution’s “takings clause,” which says “private property [cannot] be taken for public use, without just compensation.”
Democrats counter that the mandate is necessary to make the planned overhaul of the health-care system work, and ensure that as many people as possible participate in the system. Under the Senate bill, individuals who don’t purchase coverage would face a financial penalty up to $750.
Democrats say the courts have given Congress wide authority to impose rules under its powers to regulate interstate commerce.
“We feel very sound in our position,” Mr. Reid said.
Reid, of course, has to sound confident about the constitutionality of the individual mandate since he likely wouldn’t get 60 votes to do something he openly thought was unconstitutional.
But it’s not like he’s whistling in the dark. While the notion that the government can force people to buy private insurance will offend the sensibilities of many Americans, Reid can find any number of legal experts who argue that, so long as Congress frames the language of the law properly, such a mandate could pass a Supreme Court challenge.