an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I want to thank Jack and everyone here for inviting me to post on a semi-regular basis. Let's start with what I've dubbed the "private action" argument against the constitutionality of the individual health insurance mandate. Today Randy Barnett posted a draft of his forthcoming article defending this view. My post is not a response to his paper, as I have not read it yet, but reflects my current thinking about what is a difficult issue.
The chief contention of those who are challenging the requirement that almost all Americans must buy health insurance or pay a tax is that Congress lacks the power to regulate inaction (or to use Randy's term, to "commander" people) under the Commerce Clause or the taxing power. Conscription and jury service are distinguished because they are long-established exercises of federal authority, address core questions of citizenship, or just aren't about commerce or taxes.
The inaction argument is based on federalism. States, as far as I can tell, are free to make us buy health insurance against our will. Thus, I approach the constitutional question my asking whether there is an important federalism value that is supported by the line that opponents of the individual mandate want to draw. Two analogies come to mind.
The first is the state action requirement. A justification for part of that doctrine is that giving the federal government the authority to compel state officials to act in certain situations would be unduly intrusive or burdensome for state governments. (Anti-commandering is the same concept expressed through the Commerce Clause instead of via the Fourteenth Amendment).
The second is compulsory education. Presumably, if you think that Congress cannot make you buy health insurance, you also think that Congress cannot force you to stay in high school until you're 18. Indeed, there is no federal law about mandatory education. That could be justified on federalism grounds because there is a strong tradition of local control for schools (as stated in several Supreme Court cases) or because you may think that the "laboratory of democracy" rationale applies with special force for education.
What about health care? On the one hand, there is a larger federal role in health care than in education. The individual mandate is also generally applicable--it does not impose a special burden on state officials or on state government in the way that Printz contemplates. On the other hand, Medicare and Medicaid are administered in concert with states, and that could express an understanding that federalism is a significant concern in health care. And there is a well-established tradition that insurance is regulated by states, though it's not so obvious to me why that is so.
All of this suggests that the question could be close, but there is one final consideration. The argument about private action with respect to health care is uncomfortably close to the liberty of contract. If you say that Congress cannot coerce you into buying insurance, isn't that saying that people have a "freedom from contract?" I don't say this to stigmatize the argument; I think it's actually a reasonable characterization that deserves more scrutiny.