Insurance Center

The question has come up as to whether or not the U.S. Constitution allows the government to force people to buy health insurance? Another issue that is being raised is from where comes the authority for their government to prohibit the purchasing of insurance across state lines?
Central to the government’s plan to reform health care is what is being referred to as the “individual mandate.” This is the requirement that everyone must have health insurance either through his or her employer or if not available in that way then individually purchased.

Many of those who lack insurance are in that position by choice. Generally they are young and healthy and think that they have better things to do with their money at this time in their life. The only way to make sure that these people have coverage is to force it upon them, but the question arises as to where such constitutional authority to do so can be found.

The powers that are given to each branch of government are specifically noted in the Constitution which says that any powers that have not been mentioned automatically revert to the states and to the people. It is nowhere stated that the federal government is permitted to compel an individual citizen to buy health insurance. But then however, we are talking about the same administration that assumes that it has the right to a de facto nationalization of the banking system and auto industry, to determine the limits to executive compensation and to fire corporate officers.

It appears that as regards the health care reform, it appears that the administration is operating within a somewhat distorted version of the Commerce Clause. Over the years this clause has been grossly misinterpreted to function as allowing the feds to regulate and control just about anything. Because of the collective economic impact that is held by the sum total of millions of individual health decisions being made, so the reasoning goes, the federal government has the authority, and some would add even the duty, to regulate those decisions. But this is not true.

Andrew Napolitano, the former New Jersey Superior Court Judge who is also a constitutional scholar and now serves as a Fox News analyst, says that the power to “regulate” interstate commerce is that and that alone. He points out that at the time that James Madison used the word “regulate,” what he meant was “to keep regular.” It was Madison’s intention Napolitano argues, that the government function like a referee in modern-day football, that is to throw out a flag from time to time and to be a moderator in disputes, but not as one who calls the plays.

There is creation irony to this, says Napolitano, in that while the government wants to force people to buy insurance, it restricted them from doing so across state lines. In other words, according to him when the commercial activity is the sale of insurance the Congress refuses to keep commerce regular, claiming that it has the right to regulate the removal of a person’s appendix because that comes under interstate commerce.