Health care reform has been and continues to be one of the highest priorities in the Obama Administration’s domestic agenda. The proposals for reform played a major role in the debates leading up to President Obama’s election and dominate the Administration’s, and Congress’s, current domestic activities. While most policymakers seemingly agree that reform is necessary, there is much disagreement about the particulars of the appropriate reform. One of the more contested features is the so-called individual mandate—a federal requirement that every American possess a certain level of health insurance.
In A Healthy Debate, David Rivkin and Lee Casey debate Professor Jack Balkin over the constitutionality of such a mandate. In their Opening Statement, Rivkin and Casey argue that if Congress has the power to reform the health care system, it must be found in the Commerce Clause. After examining the Supreme Court's modern Commerce Clause jurisprudence, Rivkin and Casey conclude that the mandate is even less defensible than the laws struck down in United States v. Morrison or United States v. Lopez. Nor can the mandate be based on the Taxing and Spending Clause because Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.
In his Rebuttal, Balkin disagrees on both points. Examining the bill passed by the House on November 7, 2009, Balkin argues that, irrespective of the Commerce Clause, the mandate is a bona fide tax that is within Congress's powers to tax and spend for the general welfare. Moreover, Congress could also pass a mandate under the Commerce Clause because the practices of individuals without health insurance—such as substitution of emergency room services and over-the-counter health remedies—cumulatively and substantially affect interstate commerce.
Read the full debate at the University of Pennsylvania Law Review PENNumbra website.