Sen. Brown: Constitution Gives Congress Power to Mandate Health Insurance In ‘Same Place’ As Medicare

By Matt Cover | December 28, 2009 | 12:18 PM EST

Sen. Sherrod Brown (D-Ohio) (Photo courtesy of Brown's Web site)

( – Senator Sherrod Brown (D-Ohio) did not say specifically where in the Constitution Congress is given the authority to require that every American buy health insurance, as both the Senate and House health care bills mandate. However, Brown did reference the “same part of the Constitution” that allows for Medicare.
At the U.S. Capitol on Tuesday, Dec. 22, asked Sen. Brown: “Where in the Constitution does Congress get the authority for an individual health care mandate.”
Brown said: “The same part of the Constitution that allows us to have Medicare. When I hear people that think this is a constitutional issue, my first question to them is, ‘Do you want to repeal Medicare?’ And some people, politically, are so extreme in this country that they want to repeal Medicare, and I think they’re dead wrong.”

The individual health insurance mandate in the Senate health care bill would force all Americans to carry some form of government-approved health insurance or pay an excise tax penalty ranging between $500 and $1,500 per year.
The Senate health care bill, the Patient Protection and Affordable Care Act, is 2,078 pages long and is estimated to cost -- over 10 years, with benefits starting in 2014 – at least $1.8 trillion
The legislation passed on a party-line vote, 60 – 39, on Dec. 24, Christmas Eve. (Sen. Jim Bunning [R-Ky.] skipped the vote, while the two Independents – Sen. Bernie Sanders of Vermont and Sen. Joe Lieberman of Connecticut – joined with the 58 Democrats to pass the bill.)
Back in 1994, the Congressional Budget Office (CBO) examined the individual health insurance mandate, which was then being proposed by President Bill Clinton’s health care reform effort, and described the idea as an “unprecedented form of federal action.”
“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.”
Because Congress has never before required Americans to purchase anything, an individual mandate is without constitutional precedent and would therefore require the Supreme Court to invent en entirely new constitutional doctrine, according to conservative scholars at the Heritage Foundation.
“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,” wrote  Heritage scholars Randy Barnett, Nathaniel Stewart, and Todd F. Gaziano. 
“Therefore, because this claim of power by Congress would literally be without precedent,” they wrote, “it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine.”