More on the Constitutionality of Health Care Reform

Simon Lazarus, Public Policy Counsel to the National Senior Law Center, published an Issue Brief with the American Constitution Society last month taking on the various claims that a health insurance mandate (in the Senate version of health care reform) and tax incentives encouraging the purchase of health insurance (in the House version) are unconstitutional.  We've covered the issue here, here, and here.

Here's Lazarus on the claim that requiring health insurance amounts to regulating non-activity--one of the more popular arguments that health care reform exceeds Congress's Commerce Clause powers:

This "inactivity" is empty and verbal gimmickry.  Individuals who go without health insurance--if health insurance is available to them and affordable, a contingency that the legislation goes to great lengths to eliminate--are not "doing nothing."  They are deciding to put off paying for health insurance and for health care--because they believe that they won't need it until some future date, or because they recognize that, one way or the other, through hospital emergency room care or other means, necessary care will be available if serious illness or an accident strikes.

Brief at 8-9.

Lazarus concludes by putting the issue in a larger context:

If, as opponents claim, the burden of mandatory health contributions was--in principle--oppressive and unfair, Medicare, and for that matter Social Security taxes would raise constitutional questions no less if these landmark statutory programs were cast as regulations of interstate commerce.  In fact, of course, since 1937, such questions have never been raised either in the courts or in Congress.  The reason is simple:  most people regard these mandatory contributions--in light of what they expect to receive in exchange--as a bargain not a burden.

Brief at 15 (emphasis in original).

SDS