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A Constitutional Debate Over a Health Care Mandate


A Constitutional Debate Over a Health Care Mandate
By Katharine Q. Seelye | NY Times

Still others have questioned how the mandate would work and suggested that a government-run insurance plan, including a single-payer system, or a system of tax subsidies could be “more efficient in containing costs and avoid the slippery slope of unconstitutional mandates.”

The Congressional Research Service recently grappled with the legal underpinnings of an individual mandate and concluded that Congress “may have” the power to enact a mandate “as part of its taxing and spending power or its power to regulate interstate commerce.”

Still, it sees potential pitfalls, noting: “Whether such a requirement would be constitutional under the commerce clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.”

If the individual mandate were found to be unconstitutional, the health care overhaul as it is now structured by many committees in Congress would almost certainly collapse.

The requirement that everyone buy health insurance moved a step closer to reality last week — and possibly a step closer to being challenged in court.

Conservatives and libertarians, mostly, have been advancing the theory lately that the individual mandate, in which the government would compel everyone to buy insurance or pay a penalty, is unconstitutional.

“I think an individual mandate will pass, and I think it’s going to be very vulnerable because it exceeds Congress’s constitutional authority,” said David Rivkin, a lawyer who served in the Justice Department under Presidents Ronald Reagan and George Bush. Mr. Rivkin spelled out his argument in a recent op-ed article in The Wall Street Journal that he co-wrote.

“If you say the government can mandate your behavior as far as this type of insurance goes,” he said, “there will be nothing the government can’t do. They can control every single way in which you dispose of your income.” Read more.

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