Are Health Insurance Mandates Constitutional?

Normally I take everything that comes out of Consumer Watchdog (formerly the Foundation for Taxpayer and Consumer Rights) with a grain of salt. OK, with truckloads of salt, mountains of skepticism, and continents of doubt. Jamie Court is passionate about his causes, but he's also a political showman and an ideologue -- a dangerous combination.

But even a broken clock is right twice a day. And in this case, he's not taking a position, just raising a question. The question concerns whether health insurance mandates are constitutional.

Mr. Court and Karl Manheim, a professor at Loyola Law School, wrote an opinion piece in the Los Angeles Times today which raises doubts about whether such mandates are legal. Making the point that requiring consumers to buy health insurance coverage is "essentially a forced contract" Mr. Court and Professor Manheim point out that such an arrangement are virtually unprecedented. While states have legally required auto insurance and fire sprinklers, they note that these mandates are "discretionary -- you don't have to drive a car or build a house. Nor do you have a constitutional right to do so."

Nor do are individual mandates like social security and Medicare. "There's a big difference between participation in a government health program funded by taxes and privatizing such a program, with individuals forced to purchase private health insurance," they say. "Taxation involves representation, which is the case when Congress appropriates money and controls a government program for the general welfare. This describes Social Security and Medicare. But government cannot simply delegate its taxing powers to private business."

The authors admit that if there's a compelling government purpose in forcing such an arrangement it could pass constitutional muster. But they're skeptical. They find moving toward a single-payer, government run system (surprise, surprise) or to a system of regulation and tax subsidies as proposed by Senator Barack Obama (ok, a real surprise) as "both more efficient in containing costs and [as a way to] avoid the slippery slope of unconstitutional mandates."

Are Mr. Court and Professor Manheim correct in their analysis? My guess is that if Congress were to pass and the President to sign a bill with individual mandates, the Supreme Court would elect not to interfere. But they raise interesting questions that should be part of the debate that is no doubt coming with a new Administration in 2009.