Gibbs Says He Doesn’t Know if White House Has Reviewed Constitutionality of Forcing People to Buy Health Insurance
November 2, 2009 - 3:59 PMWhite House Spokesman Robert Gibbs said he doesn't know if White House lawyers have reviewed whether it is constitutional for the federal government to order individuals to buy health insurance.
This was the second time in two weeks that Gibbs had dismissed concerns that the Constitution does not give the federal government the power to force individuals to purchase items the government wants them to purchase.
Hatch told CNSNews.com last week that forcing people to buy health insurance cannot be justified under the Constitution’s Commerce Clause.
“But here would be the first time where our government would demand that people buy something that they may or may not want,” Hatch told CNSNews.com. “And, you know, if that’s the case, then we didn’t need a ‘Cash for Clunkers,’ all we had to do is have the federal government say you all got to buy new cars, no matter how tough it is on you. You know, they could require you to buy anything. And that isn’t America. That’s not freedom. That’s not constitutionally sound. Now, there may be some gimmicky way that they can do this, but I can’t think of a gimmicky way that would be constitutionally justified.”
Gibbs was asked by a reporter on Monday: “Have White House lawyers looked at this issue? Has this been examined in any way?”
Gibbs responded: “Not that I know of. I don’t think it has gotten to the point where anybody questions the legitimacy of it.”
The reporter followed up: “Well, Orrin Hatch questions the legitimacy of it.” Gibbs quipped, “Well, you should ask him.”
The reporter asked, “Do you not feel there is any concern at all about whether it is constitutional for Congress to impose a mandate?”
“No,” Gibbs said.
Both House and Senate versions of the health care bill would mandate that individuals purchase health insurance.
While the executive branch is apparently not reviewing the constitutionality of the proposal, a Congressional Research Service (CRS) report issued on July 24 looked at it and did not arrive at a definitive answer.
“Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance,” the CRS report said. “Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.”
The CRS report also addressed one of the most frequently used arguments in favor of allowing a mandate.
“Although the federal government provides health coverage for many individuals through federal programs such as Medicare, it has never required individuals to purchase health insurance. While a requirement to transfer money to a private party may arise in other contexts (e.g., automobile insurance), it has been noted that these provisions are based on exercising a privilege, like driving a car,” the report says.
Mandates that drivers buy auto insurance are enacted on the state, not the federal level and are therefore not based on any interpretation of the Commerce Clause, which is a part of the federal Constitution and applies to federal laws.
Former Justice Department Attorney David Rivkin was among the first to raise the issue of whether requiring people to buy a product is constitutional. He predicts if the health care bill is enacted, the question of the mandate will ultimately be decided by the U.S. Supreme Court, which he predicts would probably take up to four years.
“This is a mandate that would apply to millions of Americans,” Rivkin, who served in both the Ronald Reagan and George H.W. Bush administrations, told CNSNews.com. “A good number of them are going to run to district courts and start a lawsuit. It would eventually go to the Supreme Court. It would take several years. There will be lots and lots and lots of cases. And people will have standing. We’re not talking about taxpayer standing. We’re talking about a mandate that applies to them personally. It will take several years to get to the Supreme Court, probably at least four.”
Rivkin believes if this is upheld, it would set a precedent to mandate the purchase of other products.
“Not one person has emerged to tell me what would be the limiting principal for the purchase of health care. You can mandate the purchase of health club memberships,” Rivkin said. “You can mandate the coverage of mental wellness. You could mandate the purchase of new cars every couple of years. That sure would stimulate the automotive sector.”
The non-partisan CRS analysis points to several U.S. Supreme Court precedents.
The high court in United States vs. Lopez rules that prohibiting the possession of a firearm near a school zone is not justifiable under the Commerce Clause. Also, in the case of United States vs. Morrison, the high court determined that Congress did not have the authority to pass the Violence Against Women Act ruling that “gender-motivated crimes are not, in any sense of the phrase, economic activity,” and that expanding such regulation of a non-economic activity would enable federal regulation of almost any activity, including “family law and other areas of traditional state regulation.”