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Gotta love him, for all that he’s done for healthcare reform and so many other issues, but anyone, no matter how good, gets it wrong occasionally. And, perhaps he could be forgiven in this case because the issue has been so buried in the shouting and trivia about reform that it hasn’t really received the requisite attention. I’m talking, of course, about “mandates”.

Are mandates to buy healthcare insurance constitutional? Oh, boy. Is that a hot one! Perhaps before we answer this we should get out our handy copies of the Constitution and look. And maybe if Keith had skimmed through his copy, he might have been a little more circumspect before assuming this is a settled issue.

Many people think that the federal government can make any law it wants. They can be forgiven, perhaps, because in modern history that’s been the attitude of Congress, and it’s gotten little pushback from anyone in the country. It ain’t so.

BTW: Here's the free clinics link.

Let’s clear up a few things. I’m in favor of a single-payer system. How would the federal government go about instituting a single-payer system in a constitutional way if mandates are not constitutional?

If the federal government taxes people enough to pay for all essential healthcare, say through an increase in the income tax, and then spends that money on healthcare, that is clearly constitutional. The income tax, though challenged, has a solid basis in the Constitution:

Amendment Article XVI.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

This doesn’t say, technically, that it is legal to tax people at different rates based on their income, but I’m willing to bet that you can find case law where this was challenged and upheld.

The  cleanest, most constitutional way (IMO) to fix the healthcare system would be to increase the income tax enough to pay for all essential healthcare in the country and then just pay for it. This would not require a mandate because the payment for healthcare would come out of general revenue. You could pay for healthcare insurance as an individual, if you wanted (and you probably would want to, to get a premium policy, as happens in other countries), but most people wouldn’t.

Second, just because Republicans and “conservatives” use constitutional arguments doesn’t make constitutional arguments Republican talking points. They are American talking points, and liberals should use them to their advantage. The Constitution was written by liberals and it is specifically designed to support liberal views. For example, power granted to the government is limited but the rights of the people are not. This is the liberal take on governmental power, and we should be familiar with it and use it as one of our most potent political weapons.

Third, if we get this wrong and it gets thrown out by the SCOTUS, we will be back to square one. The New Deal was rejected by the Supreme Court the first time around. (President Roosevelt got around that, I believe, by packing the court. Let’s just not go down that path.)

So, don’t make the mistake of thinking that this argument supports the opponents of healthcare reform. Getting it right actually is very important, and having a mandate would be good for the insurance industry, not the American people. We should scrap them now, before this goes any further.

Before going back on Countdown and further trying to support the unsupportable mandates, perhaps Mr. Olbermann should hole up with a copy of the relevant document and channel Washington, Adams or Jefferson for a bit. Here are a couple of sad excerpts from Thursday’s show:

Olbermann: Even Senator Grassley of Iowa, death-paneling the one part of the Baucus bill that the insurance industry actually likes—the mandated coverage for everyone with no pesky public option to provide competition paid for, in part, at government subsidy expense. The Iowa Republican calling individual mandates unconstitutional, in violation of the Tenth Amendment.

Grassley: This is the first time in the two hundred and twenty-five year history of our country that we have forced you as a constituent—any of our constituents—to buy a product. You know, you’ve been free to buy or not buy. But now, for the first time [if this passes] you are going to have to buy health insurance. I’m not a lawyer, but let me tell you, I’ve listened to some lawyers speak on this, and you know it’s a relatively new issue. … And, a lot of constitutional lawyers are saying it is unconstitutional, or at least a violation of the Tenth Amendment. Now, maybe states could do this, but can the federal government do it? …

Olbermann: You heard of insurance on cars, Senator Grassley? Mandatory insurance on cars?

After that, it was on to Rep. Anthony Weiner, who was surprisingly ill informed, calling Grassley “one fry short of a Happy Meal if he thinks that Congress can’t do this”.

When you see Chuck Grassley pulling these bizarre constitutional theories out of… I’ll leave it to your viewers to imagine where he’s taking them from, but, I mean, you really do see how bankrupt the debate has become.

Fortunately, Keith next got Lawrence O’Donnell on, and O’Donnell (gently, but firmly) added a little bit of restraint.

Olbermann: I’ve asked you before to try to take me through the thought process of Chuck Grassley, if any. How might individual mandates be a states issue, exactly, and how would they be unconstitutional if it’s necessary and mandatory by law to buy insurance for your car?

O’Donnell: Well, Chuck Grassley always does say, “I’m not a lawyer, but…”.

Olbermann: He’s not a Senator, but….

O’Donnell: Well, car insurance is not a federal law; it is a state law. So, that is the distinction Grassley is drawing. And it’s, there’s a reasonable discussion to be had here. I think the individual mandate would survive a constitutional challenge. I don’t think Anton Scalia would see it that way. But, it is unprecedented. Even liberal constitutional scholars who defend the individual mandate will admit that it is unprecedented. The government has never ordered a citizen to buy something before. But, but, it would probably survive that challenge. The Massachusetts individual mandate is being challenged in the court. It has survived so far, in the Massachusetts court.

I don’t think these mandates would survive a court challenge. Frankly, I may be one of the first to chase them into court. Is it really acceptable to you to have the government tell you that you have to purchase a private product? Can they force you to buy and take contraceptives, for example, if it seems like that would be good public policy? Can they force you to buy only American-made products? Can they force you to buy nutritional food? We might think any of these things are good ideas, but mandating them? I got to say, I just don’t think so.

So, just on the face of it, it is a bad precedent. But, even if it were a good idea, where does the Constitution give Congress the power to make such a law? Where does the federal government get the power to mandate that you buy a private product? It certainly isn’t in the Constitution itself. Here’s the relevant part. See if you can spot a mandate:

Article I. Section. 8.

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Didn’t see it? Go back and take a second look. Neither did I. You can easily search the whole document, if you like, but you will not find that it gives the federal government the power to demand that you buy things from private entities. Perhaps this is a power of the states, or the people, but it is certainly not a power granted to the federal government.

So, perhaps the Tenth Amendment has something to say on the matter:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But, frankly, not as much as the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Let me translate that for you from the original American English. It’s saying that the federal government doesn’t have the power to invade my right to privacy. Just because the authors didn’t specifically write down “Congress shall make no law abridging the right to privacy of citizens” doesn’t mean that they get to invade my privacy.

Now, we know that Congress is going to try to skirt all this by writing this up not as a “mandate”, per se, but as a kind of tax, like an excise tax on those that don’t have insurance. So, this will obviously go to court, should it be included in the final bill. And, that’s where O’Donnell’s “reasonable discussion” may come in. But, I can tell you that a “tax” designed to penalize people for not obeying a mandate is just a fine, in practice, so my reading of this is FAIL. I would fully expect that reasonable justices on the Supreme Court would eventually just tell the government, “Sorry, but you can’t hide a fine as a tax. Go do over.”

That’s the last thing we want.

We need for this to work. So, let me be very specific in my instructions to my representatives in Congress and the White House: Don’t build this around a mandate. It’s just a sop to the insurance industry that we don’t need, and it will cause the whole thing to go down a legal rat hole. Get on with the public option, take the mandates out, or, better yet, scrap this and get us a real plan, a single-payer plan, one that has some hope of actually bringing down the costs. If you do this and then it comes unraveled, I will not be the only person steaming mad at you.

Originally posted to Liberal Thinking on Fri Oct 16, 2009 at 09:16 AM PDT.


Are mandates constitutional? Can you point to where they are authorized in the Constitution?

5%4 votes
10%7 votes
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57%40 votes
8%6 votes

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