Sleight of Hand

Put Some Limits in Place on Federal Power Now

by Richard A. Epstein

Professor Erwin Chemerinsky pushes all the right buttons for the government in making out the claim that the imposition of the individual mandate is in his words "clearly constitutional" under today's law. I have written here and here that the current Commerce Clause jurisprudence of the Supreme Court is wholly inconsistent with the original vision of the Constitution as giving the federal government few and enumerated powers.

With ObamaCare, the Congress has stretched that overbroad power even further, by allowing the government to impose taxes on individuals who have not engaged in any form of activity at all. Chemerinsky takes the view that this benign intervention is intended to make sure that individuals who will always be in the need of health care will be prevented from free riding on the system by showing up without insurance coverage or cash at an emergency room.

But in reality the motivation for ObamaCare's mandate much more complex. There is no need to coerce individuals to take insurance coverage that work to their advantage. But it is far harder to get them to take insurance coverage that works to their disadvantage, by forcing their payments to subsidize other individuals.

Yet that is one of the main functions of the mandate--to make sure that other individuals can free ride off the young and the healthy by forcing them to pay more for health care than it costs them to cover their own costs.

Professor Chemerinsky does not address this subsidy point at all, but only notes that people will at some time use the health care system or to receive compulsory vaccination in order to gain entrance into school or the workforce. But he never explains why these modest objectives make it rational for the government to enact this massive system (which is likely to fall of its own weight) to deal with these modest problems. Compulsory vaccination is something that is already in place, and is run typically under state auspices. No one has contested it, and it is not a part of ObamaCare at all.

Similarly, stopping free riding can also be handled by disallowing free government coverage at government institutions for those who do not present health care coverage. It can then make provision to allow individuals to buy coverage if they so choose it from some government provider to regain that access. Forcing people to enter into commerce so that they can then be regulated is just not needed at all. Far less intrusive means are needed to achieve those stated ends.

But what about the need for cross subsidy that is an essential part of the program? Professor Chemerinsky is silent on that issue, and for good reason. There are many proper ways in which to provide subsidies. The mandate is not one of them. The simplest is to use the federal power to tax and spend to impose a tax in the standard form on general revenues so that all persons in the society have to pay to discharge this social objective. There is no reason to force the care of the old exclusively onto the young. Yet no one has yet suggested how any tax on income, a tax on the ownership of property, or a tax of specific transaction could ever have the same incidence as the individual mandate.

So why does Congress use this odd form to achieve an objective done by conventional means? Because they could not muster the support through regular channels. Owing to the backhanded way in which the individual mandate (and indeed the entire bill was passed) the Court should think twice before allowing Congress to extend its powers further than has previously been the case. Professor Chemerinsky does not indicate what limits if any remain on federal power. He clearly prefers that there would be none. A case of this sort of commandeering has never come before the Court. Owing to its inconsistent and hidden agenda, and the odd mode used to secure its passage, the Court should not extend the current overblown law any further than it has already gone. It should strike down the mandate, and take with it the provisions that depend on it for their implementation.