In a January 7 editorial, The Washington Times took a Congressional Research Service (CRS) report out of context to revive the myth that the individual mandate included in the health reform legislation is unconstitutional. In fact, CRS does not conclude that the mandate is unconstitutional, and numerous legal experts have debunked the claim.
Wash. Times takes CRS report out of context to claim individual mandate is unconstitutional
Wash. Times quoted CRS to suggest that it found that individual mandate was unconstitutional. Discussing the constitutionality of the individual mandate included in health care reform legislation being considered by Congress, the Times stated in its editorial: "[N]umerous legal analysts challenge the mandate's constitutionality. Last July, the Congressional Research Service explained why." The editorial then quoted from a July 24, 2009, CRS report:
“One could argue that while regulation of the health insurance industry or the health care system could be considered economic activity [subject to congressional authority], regulating a choice to purchase health insurance is not. It may also be questioned whether a requirement to purchase health insurance is really a [legitimate] regulation of an economic activity or enterprise. ...”
In fact, CRS report did not conclude that the legislation was unconstitutional. Indeed, later in the same paragraph from which the Times quoted - which concerned the constitutionality of the individual mandate under the Interstate Commerce Clause - CRS stated that “there is plenty of evidence that the purchase of health insurance has an effect on the commerce of the nation. For example in 2007, health care expenditures in the United States grew 6.1% to $2.2 trillion, or $7,421 per person, and accounted for 16.2% of gross domestic product.” CRS concluded its section on the Commerce Clause by stating [footnote omitted]:
One may argue that an individual coverage requirement, while not commercial in nature, is an essential part of Congress's current regulation of the health care industry. A reviewing court could consider whether the absence of a requirement to purchase health care would undercut the regulation of the health care industry as a whole. In making this determination, a court may look to the involvement of the federal government in the regulation of health care generally to decide whether a requirement to purchase health insurance could be seen as an essential component of this regulation. Given the federal government's fairly significant role in health care regulation (e.g., ERISA, the Public Health Service Act), the argument that a requirement to purchase insurance is an “essential part” of the regulation may become more viable. In addition, if a requirement to have health insurance were passed as part of a comprehensive health care reform package, this may reinforce the idea that it is acceptable under the Commerce Clause as part of a larger health care reform effort.
Wash. Times claim about individual mandate forwards a conservative myth. Conservative media figures including Fox News' senior judicial analyst Andrew Napolitano, Fox News hosts Bill O'Reilly, Glenn Beck, and Mike Huckabee, and serial health care misinformer Betsy McCaughey have claimed that the individual mandate is unconstitutional.
Numerous experts have concluded that individual mandate is, in fact, constitutional. In fact, legal scholars -- including George Washington University law professor Orin Kerr, who recently served as a special counsel to Sen. John Cornyn (R-TX) during Supreme Court Justice Sonia Sotomayor's confirmation proceedings -- have pointed out the flaws in conservatives' arguments, including that regulation of the health care sector falls under Congress' broad power to regulate interstate commerce and that Congress has repeatedly passed laws regulating health care and health insurance. In a December 2009 paper for the American Constitution Society, National Senior Citizen Law Center public policy counsel Simon Lazarus added that arguments that the individual mandate is unconstitutional “have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law.”