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Experts See Few Constitutional Hurdles Currently Impeding Federal Health Care Takeover

The federal government has many options to mandate health care for every American, whether or not it is declared unconstitutional, some constitutional law experts say.

While the question of forcing Americans to get health insurance may ultimately be decided by the United States Supreme Court, the federal government has many other tools to implement its policies, said Richard Hardy, chair of the political science department at Western Illinois University.

A recurring topic on conservative talk radio shows has been that mandated health care is unconstitutional and could derail President Barack Obama’s health care reform. But three constitutional law experts say that scenario is unlikely.

“It is not unconstitutional, unless they do it in a very sloppy way (and none of the plans seem to do that),” wrote Michigan State University Law Professor Frank Ravitch in an e-mail. “The only exception to this would be if they favored one state over others as had been proposed earlier to get votes. I don't think that is on the table anymore, but if it is that could cause some constitutional issues.”

Hardy said he expects the Supreme Court will certainly play a role once the mandate is challenged. At issue is whether health care is a fundamental right.

“If it is a fundamental right, the government would have the right to do that,” Hardy said. “If it is not a fundamental right, then we have a problem. … We are treading new ground. It is whatever Congress thinks they can get away with. It will be challenged in the Supreme Court, you can guarantee that.”


Hardy said the word “health care” is not in the constitution. He said those arguing a health care mandate is unconstitutional will point to the 10th Amendment which says those powers not expressed in the constitution are left to the states.

“They’ll say, ‘That is still a power that belongs to the people or the state,’ ” Hardy said.

But Hardy said it is not as simple as whether a right is specifically mentioned in the Constitution.

He said the Supreme Court allowed federal banks even though the word “bank” never appeared in the Constitution.

“The question is whether the Court will see health care as a fundamental right,” Hardy said. “There is no definitive list of fundamental rights. They have developed over the years.”


Hardy said the Supreme Court could turn to Article 1, Section 8, Clause 1 of the Constitution. That allows the federal government to tax “for the general welfare.”

Or the Supreme Court could look at Article 1, Section 8, Clause 18 — the “elastic clause” that gives the federal government the ability to make laws “necessary and proper” for the general welfare of the country, Hardy said.

“That is where they will claim their power,” Hardy said.

But Hardy said even if the Supreme Court rules health care is not a fundamental right, the federal government still has many options.

The Supreme Court already ruled that the federal government can use taxes to implement policy and not just to raise revenues, Hardy said.

The federal government has made many states dependent upon federal grants and can use that to get the states to go along, he said.

As examples, Hardy noted that the federal government can tell a state to raise its drinking age or require a picture on a driver license — or else risk losing its federal highway dollars.

Or the federal government could make tax incentives so favorable that states or individuals would be better off purchasing health insurance.

Hardy said states have unemployment compensation because the federal Social Security Act in 1935 included large tax incentives to business to give money to state unemployment programs.

Kermit Roosevelt, a professor of law at the University of Pennsylvania Law School, said mandating health care through taxes was “safer.”

“All the federal government would need to do would be to impose a tax in the amount of the premium the person would be paying, or some average amount, and then use that to subsidize health care for the people who bought it,” Roosevelt wrote in an e-mail. “I think the federal government has the power to do this. The Supreme Court has been quite lenient in its assessment of Congress’s ability to legislate pursuant to its power to regulate interstate commerce, and if it follows established case law, it would probably uphold such a requirement on the theory that Congress is trying to protect the national market for insurance. That is in fact what it’s doing — if insurers aren’t allowed to deny coverage to people with pre-existing conditions (which Congress can certainly require them not to do, since it’s a commercial transaction), then healthy people will likely not buy insurance, and premiums will rise for everyone else, creating a vicious circle whereby the whole market eventually collapses.”

“The argument is probably even easier if the requirement takes the form of a tax. Since people who don’t buy insurance will tend to raise costs for the people who do (if healthy people don’t buy), the tax is very much like a tax on companies that don’t install pollution controls — since their behavior imposes costs on other people, they’re being taxed to make up for it.”

Hardy said once passed, health care reform would be hard to appeal.

The Supreme Court won’t consider hearing the case until it has been passed and a controversy occurs, he said.

“Usually it takes years to get before the Court,” Hardy said. “By that time, the damage would be done.”

“Ultimately it will be whether the people will tolerate this,” Hardy said. “They can oust members of Congress. They can not return Obama to office if he pushes this.”

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.