Before proceeding to read this diary, do me a favor. Google the following phrase: "health care mandate unconstitutional." I'll wait...
OK. Notice anything about what came up as links? If you were paying attention, you'll notice the Federalist Society, the Heritage Foundation, are other like-minded conservative organizations pushing the talking point that the mandate in the health care bill is somehow unconstitutional.
Why do I bring this up? Because that argument is now being promoted in the progressive blogosphere after what appears to be the death of a public option in the Senate bill. I've seen it posted several times here, even seen prominent Federalist Society links posted with approval.
The problem is...the argument is dead wrong.
First, let's point out the obvious fallacy with those who seemingly NOW think the mandate is unconstitutional. The argument goes something like this: the government can't make me contract with a private company. Keep in mind, however, that the "mandate is unconstitutional" argument has nothing to do with whether you contract with an insurance company or not. It has EVERYTHING to do with whether you should buy ANY insurance AT ALL...and that includes a government run public option. Even if the public option were included in the bill passed by Congress, it wouldn't change the "mandate is unconstitutional" meme one iota.
The simple fact is that the power of Congress to impose an individual mandate rests first in the Commerce Clause and second in the authority of Congress to tax and spend. With respect to the Commerce Clause, the point is simple: health insurance and health care certainly fall within the economic activity that Congress can regulate under the Commerce Clause. The flawed argument being promoted by conservatives is that Supreme Court decisions in Lopez and Morrison restrict Congress' ability to regulate pursuant to the Commerce Clause. This ignores, however, that those cases were about non-economic activity and noone seriously disputes that health care insurance, spending, etc., is certainly economic activity.
With respect to the second point on the taxing authority of Congress to impose a mandate, David Orentlicher says it better than I do:
To be sure, if Congress passed a law whose only provision entailed a mandate for individuals to purchase a product, and violators of the law were automatically subject to incarceration, constitutional concerns would arise. Imagine a criminal law that required people to buy an American-made automobile to bolster the domestic car industry. But that is not the kind of mandate Congress is contemplating. Rather, the House and Senate approach will readily fall within their taxing and commerce clause authority.
It's that simple. Congress will impose a tax on everyone vis a vis health insurance. You fill out your tax form. If you have employer provided health insurance, or purchased health insurance through the exchange, you are exempt from the tax. If not...you're not.
If you want a further, better, more detailed analysis of the constitutionality of the individual mandate, check out Professor Mark Hall's extensive study on the issue for the Georgetown School of Law's O'Neill Institute on Health Policy. It explains it in far more detail than I do.
I have not gotten into the all the details primarly because I don't have time. But I post this diary to make a simple point:
When conservative talking points with no basis start getting parroted in this community with no critical analysis whatsoever, we've lost something.
There is NO doubt in my mind that the conservatives would STILL be making the "unconstitutional" argument even if there were NO mandate. Hell, we've heard that refrain on an even more simplistic level from the Teabaggers from Day 1. Essentially, if you believe it is unconstitutional, then you believe that Congress cannot regulate health care one iota. Period. End of discussion. You might as well abolish Medicare and Medicaid while we are at it.
It is this type of argument, when seen here, that leads me to throw my hands up in this "debate." Argue on whether you think mandates are a good idea (for the record, I've never liked them). But don't argue the Constitution on this point unless you are armed with the analysis and the facts.
Otherwise, frankly, you will sound like a Teabagger with an armchair understanding of the Constitution.