The Commerce Clause Limits Federal Power to Mandate the Purchase of Private Health Insurance

A constitutional question regarding the federal power to mandate the purchase of private health insurance has arisen during the recent debate over the Congressional liberal Democrats’ proposal supported by United States President Barak Obama to federalize health insurance.

Several liberal Democratic members of Congress have cited the Commerce Clause of the United States Constitution as authority for this unprecedented requirement to purchase something as a condition of residence in the United States. However, the Commerce Clause (Article I, Section 8, Clause 3) does not grant the federal government any such authority. In fact, it expressly denies the federal government that authority.

Senator Dianne Feinstein (D-CA), for example, recently stated that she assumes that the Commerce Clause grants the federal government unlimited power to mandate residents to purchase private health insurance. However, the Commerce Clause limits federal power. It is not an unlimited power: it only allows the federal government to regulate interstate commerce and commerce with the Indian tribes, not all commerce, such as that conducted within a state (intrastate commerce).

Regardless, as others have noted, the proposed federal mandate to purchase health insurance is not a regulation of commerce, but a requirement to engage in commerce. Even if it were commerce, it is not interstate commerce, as federal law bans the purchase of health insurance from out of state, meaning that all health insurance is intrastate commerce. Therefore, the federal government has no constitutional authority to regulate health insurance currently at all, let alone to mandate its purchase.

Some of the liberal supporters of federalizing health insurance have argued that requiring the purchase of health insurance is like requiring the purchase of car insurance, but their argument only undermines their claim of constitutional authority. As others have noted, it is states, not the federal government, that mandate the purchase of car insurance. Furthermore, they only require the purchase of car insurance for those who exercise the privilege of driving – on public roads – out of concern for the health and safety of their citizens, as well as the protection of their property. The analogy between health insurance and car insurance thus easily fails.

Liberals have violated the Constitution by diluting the Commerce Clause and claiming federal power to regulate all economic activity so much and for so long that they have finally overreached in their proposal to mandate the purchase of private health insurance to such an obvious degree that the constitutionality of such a requirement would be challenged in federal court.

The constitutional question of whether the federal government is limited by the Constitution, the language of which reflects the intent of its Framers, or can do whatever federal politicians want to do without amending it by citing that very document as providing their unlimited authority to act is of greater significance than the particular problems presented by the proposed federalization of health insurance itself. In addition to the truth, at stake is the principle of limited government (i.e. the principles of subsidiarity and federalism) versus the centralization of power, and the liberty of the States and the people.