Sen. Bob Casey: Health Care Mandate Constitutional But Not Sure If There's 'Specific Constitutional Provision'

December 23, 2009 - 8:03 PM
Senator Bob Casey (D-Pa.) said he was not sure if there is a "specific constitutional provision" that gives Congress the authority to mandate that all Americans have health insurance. Casey asserted, however, that the mandate was constitutional.

Sen. Bob Casey (D-Pa.) (Photo courtesy of Casey's Senate Web site)

(CNSNews.com) – Senator Bob Casey Jr. (D-Pa.) said he was not sure if there is a  “specific constitutional provision” that gives Congress the authority to mandate that all Americans have health insurance. Casey asserted, however, that the initiative was constitutional.
 
At the U.S. Capitol on Tuesday, CNSNews.com asked Sen. Casey: “Where does the Constitution give Congress that authority, for an individual health care mandate?”
 
Casey said: “Well, I don’t know if there’s a specific constitutional provision. But we’ve had over, gosh, the Senate is over 220 years old, and I think in those 220 years we’ve seen multiple examples of legislation passing that had a health care component or health care impact, whether it was Medicare or Medicaid.”
 
Casey went on to say that he thought the health insurance mandate was constitutional and gave his assurance that it would stand up to any constitutional challenge.
 
“I think it’s constitutional and I think it’s been subjected to scrutiny before, and I think if this bill is subjected to scrutiny on that constitutional question, I think it will prevail,” he said.


 
However, as the Congressional Budget Office noted in 1994 – during then-President Bill Clinton’s push for a similar health care overhaul – there is no precedent for Congress requiring Americans to buy any specific good or service.
 
“The government has never required people to buy any good or service as a condition of lawful residence in the United States,” the CBO analysis said. “An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”
 
This fact has led some conservative scholars to claim that an individual mandate could not pass constitutional muster as Sen. Casey claims, unless the Supreme Court were to create an entirely new area of constitutional law.
 
“Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and,” Heritage scholars Randy Barnett, Nathaniel Stewart, and Todd F. Gaziano wrote. [http://www.heritage.org/Research/LegalIssues/lm0049.cfm]
 
“Therefore, because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine.”
 
A transcript of CNSNews.com’s interview of Sen. Bob Casey (D-Pa.) follows below:
 
CNSNews.com: “Where does the Constitution give Congress that authority, for an individual health care mandate?”
 
Senator Casey: “Well, I don’t know if there’s a specific constitutional provision. But we’ve had over, gosh, the Senate is over 220 years old, and I think in those 220 years we’ve seen multiple examples of legislation passing that had a health care component or health care impact, whether it was Medicare or Medicaid.”
 
Senator Casey: “I think it’s constitutional and I think it’s been subjected to scrutiny before, and I think if this bill is subjected to scrutiny on that constitutional question, I think it will prevail.”
 
As this story went to press, it was reported that the Senate had rejected along partisan lines, 60-39, a Republican measure to examine whether the health care mandate requiring Americans to purchase health insurance is constitutional.