says Cornell University Constitution Law Scholar.
http://writ.news.findlaw.com/dorf/20091102.htmlAlthough many key details remain to be negotiated, Congress appears poised to enact some substantial reform of American health care that will build on, rather than replace, our patchwork of government, private, and non-profit insurance. The bill that the President signs will likely contain, among other things, an "individual mandate" requiring that everyone obtain health insurance or face a financial penalty. Would such a mandate be constitutional?
In my last column and an accompanying blog entry, I considered and rejected the objection that an individual mandate would be an unprecedented burden on liberty because it would affirmatively direct conduct, rather than either forbidding conduct or imposing affirmative obligations on only those who engage in conduct that the government has the power to forbid. As I explained, there are substantial precedents for such affirmative obligations and even if there were not, there is no reason in principle why an affirmative duty is a greater restriction on liberty than a prohibition or condition.
In this column, I consider a different objection to the individual mandate: the claim that the federal government lacks the authority under the Constitution to impose the mandate or to penalize those who do not comply. As I explain, this objection is also unsound as a matter of constitutional law. I conclude, however, that individual members of Congress ought to decide for themselves whether regulating health care in the manner of the proposed bills is an appropriate job for the federal government, or instead should be left to state regulation or the market.
SNIP
Accordingly, it would be perfectly appropriate for one or more members of Congress to vote against the individual mandate or health care reform more broadly on the ground that they think such matters should be left to state regulation or to private decision makers. But it would be equally appropriate for Congress to conclude otherwise and thereby join the ranks of the other industrialized countries--including those, like Canada and Germany, with robust commitments to federalism--that have comprehensive national health care systems. Properly understood, the constitutional case law is no obstacle.
Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.