Are the healthcare bills pending in the House and Senate unconstitutional?
That's what some of the bills' critics have alleged. Their argument focuses on the fact that most of the major proposals would require all Americans to obtain healthcare coverage or pay a tax if they don't. Those too poor to afford insurance would have their health coverage provided by the state.
Although the desirability of this approach can be debated, it unquestionably would be constitutional.
Those who claim otherwise make two arguments. First, they say the requirement is beyond the scope of Congress' powers. And second, they say that people have a right to be uninsured and that requiring them to buy health insurance violates individual liberty. Neither argument has the slightest merit from a constitutional perspective.
Congress has broad power to tax and spend for the general welfare. In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress' power. The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid.
Congress has every right to create either a broad new tax to pay for a national healthcare program or to impose a tax only on those who have no health insurance.
The reality is that virtually everyone will, at some point, need medical care. And, if a person has certain kinds of communicable diseases, the government will insist that he or she be treated whether they are insured or not. A tax on the uninsured is a way of paying for the costs of their likely future medical care.
Another basis for the power of Congress to impose a health insurance mandate is that the legislature is charged with regulating commerce among the states. The Supreme Court has held that this means Congress has the ability to regulate activities that have a substantial effect on interstate commerce. A few years ago, for example, the court held that Congress could prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.
The relationship between healthcare coverage and the national economy is even clearer. In 2007, healthcare expenditures amounted to $2.2 trillion, or $7,421 a person, and accounted for 16.2% of the gross domestic product.
