In response to:

Is Health Care Reform Unconstitutional? from the February 24, 2011 issue


To the Editors:

Professor David Cole’s excellent essay on the constitutional issues surrounding health care reform addresses almost all of the major issues [“Is Health Care Reform Unconstitutional?,” NYR, February 24]. If I may, I would like to add one additional observation regarding the law’s challengers’ position that the government only has the power to regulate economic “activity” and lacks the power to command action from individuals.

Article One, Section 8 of the Constitution contains a list of seventeen areas where the federal government can exercise authority. The third provision deals with interstate commerce. The eighteenth and last provision of Section 8 gives the federal government the power to do what is “necessary and proper” with regard to all of the foregoing provisions. In other words the “Necessary and Proper Clause” applies to all of the previous provisions. It would be very odd if it were only the regulation of interstate commerce that was singled out to deal with “activities” with no power to compel people to engage in activities.

The twelfth provision of Section 8 grants the government the power “to raise and support Armies.” Men must register for the draft and for decades before the now all-volunteer army people were compelled to engage in the activity of serving in the military, many of whom died in their service. Yet the Constitution does not spell out the power to conscript. It is the same “Necessary and Proper Clause” that permits it.

It would be a very odd body of constitutional law if the federal government could make a person act by serving in the military, perhaps at the cost of his life, but be unable to make him do something that affects interstate commerce by simply requiring him to purchase health insurance.

Francis Barry McCarthy
Professor of Law
University of Pittsburgh School of Law
Pittsburgh, Pennsylvania

To the Editors:

With David Cole, I hope that the Supreme Court will reject constitutional challenges to the health care law, which is a lesser evil than the status quo—though painfully inferior to the public option that was prematurely jettisoned. But if its defenders have no better arguments than Cole’s, that outcome seems unlikely. The wheat and marijuana cases do not exactly ring of justice. Precedents decided under the “Necessary and Proper Clause” allow some wiggle room, but the Court will resort to them only in favor of a cause it has strong independent motive for supporting.

Cole, like many others, simply disregards hard-to-support consequences of the health care law’s mandate—consequences that even some liberal judges may perceive as strengthening legal distinctions that he dismisses as flimsy. Putting aside for a moment legal arguments about which provisions of the Constitution might provide the most plausible basis for an attack, and looking simply at what this law does, it is easy to conclude that the mandate’s effects are readily distinguishable from those of any precedent’s in both degree and kind.

Being legally required to debate one’s spouse’s bone marrow transplant or one’s child’s tonsillectomy with the people at Aetna or UnitedHealthcare is not at all like being taxed or regulated in the way that we are used to and accept. Given the sort of insurance that middle-income people can afford and will be forced to accept, given the despicable behavior of the insurance companies over the past few decades, the maddening interposition of bureaucrats between patients and their doctors, the time-wasting snarls of red tape and delays and refusals, the injustice, anxiety, and rage-inducing frustration that is the average person’s experience with these companies, many people—including those with and without insurance—believe that to be forced to place matters of life, suffering, and death in the hands of corporate insurers is an intolerable breach of liberty. Liberal lawyers, lost in abstractions, ignore how the mandate forces the entire American public into the arms of a near-universally detested industry—not just any industry but this particularly despised one—while leaving it in crucial respects unregulated.

Yes, there are precedents that would justify upholding the mandate. But there are also more than respectable paths around them. Why should judges not take one of these paths when the precedents Cole cites are in crucial respects so devoid of justice and when the mandate’s intrusiveness is so obviously out of all proportion to theirs? And since when does objecting to forced participation in a dysfunctional corporate system of commercial health insurance make one “an individualistic libertarian”? Again, for the sake of the worst off, the law merits support, but let us support it, and frame legal arguments, with our eyes open.

Cheryl Mendelson
New York City

David Cole replies:

Cheryl Mendelson’s palpable frustration with the insurance industry is understandable, and she is certainly right that a public option would have been preferable as a matter of policy. But the legal issue now is not whether the health care reform is the best policy, nor even whether it is the best that could have been obtained given political realities. The issue is whether it is constitutional for Congress to have required individuals who can afford it to purchase health care insurance rather than exploit the system by being “free riders” and relying on the rest of us to bail them out.


In arguing that her objections support a conclusion that the individual mandate is unconstitutional, Mendelson makes the same mistake that the law’s challengers in court have made. They both erroneously allow concerns about “liberty” to color their assessment of the actual legal question presented: Should the power to require citizens to purchase health insurance be enjoyed only by states, or should Congress also have that power? Mendelson’s objections to having to deal with insurance companies, like those of the libertarians, do not merely imply that Congress should not have this power, but that no government should have this power. But the “Commerce Clause” argument at issue speaks only to Congress’s power, not to that of the states. States indisputably have power to require us to purchase insurance unless doing so would deprive us of “liberty” without due process, an argument so insupportable that the challengers have wisely not even made it.

Mendelson’s suggestion that cases upholding Congress’s power to regulate home production and consumption of wheat and marijuana as parts of national regulations on trade in wheat and marijuana do not “ring of justice” is similarly misguided. Whether the power to regulate wheat and marijuana should be lodged with the federal or the state government is not really a question of “justice” at all, unless one thinks that such laws would be “just” if enacted by states, but “unjust” if enacted by Congress.

Professor McCarthy’s citation of the “support and raise armies” clause is intriguing, but those attacking the individual mandate would likely argue that the power to conscript flows much more easily from the textual grant of power to “raise” an army than the power to require the purchase of health insurance flows from the power to regulate interstate commerce. The Supreme Court upheld the constitutionality of the draft in 1918, and while it cited the “Necessary and Proper Clause,” it relied principally on the direct implications of the power to “raise armies,” and the history of Great Britain and the colonies having exercised that power. However, the federal government’s power to compel citizens to risk their lives by serving in the army, as well as its powers to compel citizens to pay taxes and to serve on juries, does underscore that there is nothing inherently unconstitutional about imposing affirmative obligations on citizens.

Finally, it is worth emphasizing that the health care reform law does not merely impose a mandate on citizens. It gives every citizen something valuable and popular—the right not to be denied insurance or discriminated against because of one’s pre-existing medical condition. With that right, however, goes an obligation not to abuse the right by gaming the system and waiting to purchase insurance until one gets sick. The mandate, which applies only to those who can afford it, and allows individuals to pay higher taxes if they really object to dealing with insurance providers, is merely a reasonable condition on the important right the law grants us all against insurance companies.

This Issue

April 7, 2011