Is the Individual Insurance Mandate Unconstitutional?

I have talked about the political and economic ramifications of ObamaCare. how about discussing the legal ones? Thirteen state attorneys general, including my own Henry McMaster, have filed suit claiming the individual insurance mandate is unconstitutional. Do they have a case?

In short, a very slim one.

The suit lays out a number of claims. The two biggest are that ObamaCare is a violation of state sovereignty and it violates the Commerce Clause. The state sovereignty claim holds virtually no water. The claim is pretty much thrown in their because the suit is being filed on behalf of the state. An assertion of political clout, if you will. No one involved will admit that is the only reason, but that is what it is. The Commerce Clause violation claim is a bit more interesting.

The Commerce Clause grants congress the power to regulate interstate commerce. But there is a world of difference between regulating commerce and forcing an individual to buy a product. Congress can set safety standards on GM cars since they are sold across state lines, but it cannot force you to buy one. However, they are forcing virtually everyone to buy insurance.

The drafters of ObamaCare were mindful of the potential legal challenge. The insurance mandate was written to be more in line with Congress’ other express power--taxation. The insurance mandate is considered a tax on the uninsured. I do not know how successful that would be in skirting a Commerce Clause challenge, but I am certain an army of Ivy league lawyers came up with the idea, so there probably is not much wiggle room.

One would have to take a strong originalist view of the Commerce Clause in order to find the insurance mandate unconstitutional, which would ignore a lot of legal precedent That would not bother me, but about the only SCOTUS justice on my side there is Clarence Thomas. I am not even certain Antonin Scalia could go that far.

There is also the problem of ripeness. The law will not even go into effect until 2014. In legal terms, it has not had time to cause any problems yet. I suspect the Court would be wary of dismantling such a large legislative program even if it was.

But it is worth doing. The court has scaled back the power of the Commerce Clause before against general precedence. Who is to say they will not do it again? With the insurance mandate, we are heading into uncharted territory, which means anything can happen.