NPR

Can Congress Mandate Health Insurance?

House Majority Leader Eric Cantor (R-Va.) discusses efforts to repeal the health care law Wednesday. The House passed a bill to repeal the law, but Senate Democrats say they will block efforts to take it up. (AP)

Behind all the rhetoric over the health care law lies a constitutional debate over authority.

One of the key objections for most Republican lawmakers against the Patient Protection and Affordable Care Act, signed into law last year by President Obama, is what's called the individual mandate — a provision that will require most Americans to become insured by 2014.

Many Republicans, including Rep. Dan Lungren of California, believe Congress doesn't have the constitutional authority to make people buy insurance, and they object to the idea that everyone must have it.

It turns out Congress already had passed a sort of individual mandate even before the Patient Protection and Affordable Care Act of 2010 was approved by the 111th Congress.

In 1798, the Fifth Congress passed "An Act for the Relief of Sick and Disabled Seamen," which was signed into law by President John Adams.

The law essentially established a national health care system for sailors, according to Adam Rothman, associate professor of history at Georgetown University. "The sailors [paid] a tax to the federal government, [which used] that money to set up marine hospitals around the country, specifically for sailors," he says.

Sailors made up a critical part of the work force in the early days of the United States. "Foreign trade and the coastal trade [were] an enormous part of the national economy," Rothman says. "At the same time, it was a dangerous world. Sailors [were] being impressed into the British navy [and were] vulnerable to all sorts of diseases."

The constitutionality of the law was a nonissue among lawmakers, according to Rothman. "Everybody accepted that it was a legitimate function of the national government, even though the words 'marine hospital' and 'relief for sailors' don't appear in the Constitution. It was justified under the commerce clause."

Read more about the law on Forbes writer Rick Ungar's blog "The Policy Page."

But as constitutional law expert Andrew Koppelman tells Weekends on All Things Considered host Guy Raz, Congress can trace its constitutional authority to mandate health care coverage to the Constitution's "necessary and proper clause."

The Commerce Clause

The idea behind the individual mandate is that as more individuals enter the marketplace for health insurance, competition will grow and the price for getting coverage will go down.

But does Congress have the power to help expand the marketplace by compelling citizens to buy insurance?

Lungren argues that citizens have the right to not to buy health insurance, and that Congress is overstepping its authority in compelling individuals to choose either to comply or face a penalty on their income taxes.

He says that the Constitution's "commerce clause" does not enable Congress to mandate individuals to buy health insurance. He questions the notion that "if you refuse to enter interstate commerce — that is, if you consciously decide to be inactive — that in and of itself is a type of interstate commerce," and that Congress has the power to penalize citizens without coverage.

The Necessary And Proper Clause

Koppelman, who teaches law at Northwestern University, says that the Constitution's "necessary and proper clause" cannot be factored out of this debate.

"When somebody goes without health insurance, we can argue about whether they are or are not part of interstate commerce, but it doesn't matter," Koppelman says.

Koppelman says that in order to carry out its responsibilities, Congress can enact policies that are not among its enumerated powers in the Constitution.

A Slippery Slope?

A common criticism of the individual mandate is that the provision establishes a precedent of overextending the authority of the legislative branch.

"It's an extraordinary reach once you start to analyze what you are actually talking about," Lungren says.

Koppelman acknowledges that Congress could abuse its authority, but he also emphasizes that it is "quite unusual for Congress to require people to do something."

"The idea that we are on a slippery slope to Congress forcing you to do all kinds of things you don't want to do just misunderstands political reality," Koppelman says.

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Transcript

GUY RAZ, host:

Behind all the rhetoric over the health care law is a constitutional debate over authority, the power to compel. Now, one of the key objections from most Republican lawmakers is what's called the individual mandate. That's the law that will require almost every American to become insured by 2014.

Now the idea is that as the marketplace for insurance grows, so will competition, and the price for getting coverage will go down and it will save taxpayers' money, money that goes to pay for health care costs for the uninsured who get treatment but can't pay for it.

Now many Republicans say they don't have a problem with that idea; it's just that they believe Congress doesn't have the constitutional authority to make people buy insurance. We'll explore that question from both sides. That's our cover story today.

But first to the case of Camden, New Jersey. It's where physician and writer Atul Gawande recently went to find out how the city's medical system started to tackle skyrocketing medical costs.

Dr. ATUL GAWANDE (Endocrine Surgeon, Brigham and Women's Hospital; Journalist): One of the people I met was a man who was in his 50s with a liver cancer, didn't have insurance, was trying to use an emergency room to get treatment and it just wasn't going to happen.

RAZ: He would show up and what would happen?

Dr. GAWANDE: They would treat the immediate problem and tell him he needed to go find a doctor who would help get him treatment for his cancer.

RAZ: But every few weeks, even days, the man would show up at the emergency room complaining of pain.

Dr. GAWANDE: They would give him pain medication. They would give him CT scans to see what was going on, the source of the pain, maybe it was an appendicitis this time. Make sure it's not that. What he didn't have was a consistent person who knew him, could work with him through the series of things that happen to a patient with what turns out to be a cancer of the liver.

RAZ: In most cities, including Camden, 5 percent of patients account for 60 percent of health care costs and many of them are uninsured. And in the case of the liver cancer patient...

Dr. GAWANDE: His costs had risen so high that he'd turned up as a hot spot in the Camden cost data.

RAZ: Treatment that often costs up to $50,000 a year per patient. And Atul Gawande says what often happens in these cases is that emergency rooms themselves end up paying the costs.

Dr. GAWANDE: The hospital at that point chalks it up as uncompensated care. They set collection agencies on people who haven't paid their emergency room bill, but eventually they write it off. The state then will often pay for it. There are uncompensated care pools in most states where they help try to offset the losses that hospitals have from the patients coming in. The costs mount and mount, but no one actually looks at solving the problems.

RAZ: There's a lot more to this story. You can read it in the latest issue of The New Yorker. Atul Gawande also practices at Brigham and Women's Hospital in Boston and he teaches at the Harvard School of Public Health.

Now, many conservative lawmakers would agree that the story we just heard is a problem, and some might even agree with the idea that if everyone were insured, health insurance costs would fall for everyone. But what those same conservatives object to is the idea that everyone must have insurance. They say that the commerce clause in the Constitution and even Congress' tax authority doesn't cover this question.

Here's California Congressman Dan Lungren, a Republican.

Representative DAN LUNGREN (Republican, California): What Congress has attempted to do, and the president by signing the bill, is to say that the individual citizen, you are required to enter into a contract, that is you're required to buy a product, in this case something called health care insurance or health care coverage. And if you do not, you'll suffer a penalty.

So if you accept the fact that one's participation in one's own health care is somehow a matter of interstate commerce, in this case it goes even beyond that. It says that if you refuse to enter interstate commerce - that is, if you consciously decide to be inactive - that in and of itself is a type of interstate commerce.

I mean, it's a question that if you answer it in the way that those who support this bill answer it, it leaves you no room to - well, for any concept of freedom if you really think about it.

RAZ: So you would argue, just to clarify, that health insurance is not a form of commerce.

Rep. LUNGREN: In this particular case, it goes beyond that. It goes to the question of whether you can be mandated to enter into it. I mean, the famous case decades ago goes to the question of whether someone who is a farmer and is growing weed, I think it was, or corn or whatever the commodity was, could produce it in their own backyard or basically in a small part of their farm for their own personal use and whether that would violate the laws that then existed with respect to the limits on production.

And the Supreme Court said, in that case, that in fact you are entering into interstate commerce by producing, even in that situation, for your own consumption. Here, you're not doing anything. Here, you're being told by the government you must enter into this and your failure to enter into it is evidence of the fact that you're involved in interstate commerce.

RAZ: I mean, your argument is that, of course, that Americans should have the right to decide whether or not they want to have health care, right?

Rep. LUNGREN: Oh, absolutely. Look, if the federal government can tell you to do this now, why can they not say that we have an epidemic of obesity in this country, and therefore, as a condition of remaining a citizen or being in this country legally, you must join an approved health center program that is identified specifically by the federal government as being acceptable?

What's the difference essentially if they can require you to purchase this particular product in these certain circumstances? I don't know another circumstance where in the federal government has obligated you to go out and purchase something that you otherwise may not want to purchase.

RAZ: But the question I have for you is the argument made by supporters of the bill, which they would argue that, look, if you don't have some kind of mandate, those people end up in emergency rooms. Oftentimes, they don't pay and those costs are then passed on to people like you and me who do have health insurance and do pay premiums, so we ended up footing a large part of that bill.

Rep. LUNGREN: Well, that's a different question. That's the question of how you provide health care to people. That's not a question of whether the Constitution allows you to answer that specific inquiry in this particular way.

You know, when you really get down to it, I have never seen something as clear-cut as this instance of requiring under penalty of a fine that you purchase a product produced by a non-governmental entity. It's an extraordinary reach. And once you start to analyze what it is you were actually talking about.

RAZ: That's Dan Lungren. He is a Republican congressman from California and the former attorney general in that state. He argues that the individual mandate in the health care law is unconstitutional.

Congressman Lungren, thank you so much.

Rep. LUNGREN: Thanks very much.

RAZ: So, is it as clear-cut as Dan Lungren argues? Well, no, according to many constitutional law experts, including Andrew Koppelman, who teaches law at Northwestern University.

Professor ANDREW KOPPELMAN (Law and Political Science, Northwestern University): One of the remarkable things about this whole argument is that constitutional theories that a couple of years ago everyone would have agreed were wrong have gotten resuscitated. And so you have a wide group of people stating things that's been settled for decades aren't the case and folks in unison are saying them, that doesn't make them true.

I notice that Representative Lungren was very careful not to mention the necessary improper clause of the Constitution. After the Constitution enumerates the powers of Congress, that it can regulate commerce among the several states. It has the power to collect taxes to provide for the general welfare, and then the list of congressional powers ends with an authorization to make all laws, which shall be necessary and proper to carry out its responsibilities.

The necessary improper provision means that in order to carry out its responsibilities, Congress can do things that are not among the enumerated powers. So when somebody goes without health insurance, you know, we can argue about whether they are or not part of interstate commerce. But it doesn't matter. It's necessary to carry out where Congress does have the power to do.

The basic idea of the mandate was that unless you require people to buy health insurance, and since people with preexisting conditions are protected and allowed to buy insurance, healthy people can wait until they get sick to buy insurance and that would bankrupt the whole health insurance system because nobody would be paying into the pools. So the only way to protect people with preexisting conditions is to force healthy people into the system.

RAZ: But if the federal government can require all of us to have insurance and for those who don't have insurance to buy it, why wouldn't it be able to then pass a whole series of other requirements that would force Americans to engage in other commercial activity?

Prof. KOPPELMAN: Well, Congress has authority and authority can be abused. Congress has the taxing authority, and that means that Congress could, if it wanted to, impose a 100 percent tax on all incomes, which would destroy the American economy. I don't think they're going to do it. I don't think we have to be worried about it.

Congress is only going to do this if they have to. I mean, this is quite unusual for Congress to require people to do something. So the idea that we are on a slippery slope to Congress forcing you to do all kinds of things you don't want to do just misunderstands political reality.

RAZ: That's Andrew Koppelman. He teaches law and political science at Northwestern University.

Professor Koppelman, thank you.

Prof. KOPPELMAN: Very happy to be here.

RAZ: Now it turns out that Congress already passed a sort of individual mandate and it happened in 1798. It was called an Act for the Relief of Sick and Disabled Seamen. And President John Adams signed it into law.

Adam Rothman, a history professor at Georgetown, explains.

Professor ADAM ROTHMAN (History, Georgetown University): In the early United States, sailors are an extremely important part of the workforce. Foreign trade and coastal trade is an enormous part of the national economy. At the same time, it's a dangerous world. Sailors are being impressed into the British navy. They're also vulnerable to all sorts of diseases. So to maintain the vitality, the health of that workforce and the national economy, Congress feels that it has to step in.

So in 1798, Congress passes a law that essentially establishes a national health care system funded by the sailors themselves. The sailors pay a tax to the federal government. The federal government uses that money to set up marine hospitals around the country specifically for sailors.

RAZ: That's Adam Rothman. He teaches history at Georgetown University. You can read more about the law at our website, npr.org. Transcript provided by NPR, Copyright NPR.

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