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Is mandatory health insurance constitutional?

This article first appeared in the St. Louis Beacon, Aug. 6, 2009 - Conservatives and legal scholars lately have been debating the constitutionality of the health-care mandate in President Barack Obama's health-care legislation. The stronger argument appears to be that the mandate would be constitutional.

Slate has a piece summarizing some of the legal objections to taxing people who fail to buy health insurance for themselves or their family.

Congress would justify its health-care legislation -- and any mandate -- as an exercise of its power to regulate interstate commerce. The health-care industry clearly is interstate commerce.

Conservatives point out that the Rehnquist court cut back congressional power under the commerce clause, overturning laws like the Gun-Free Safe Schools and part of the Violence Against Women. But that cutback seems to have been short-lived.

More recently, the court reaffirmed an extraordinarily broad precedent from the New Deal era. In that case, the court upheld the application of federal agriculture laws to wheat that a farmer had grown for his own consumption. Even this tiny amount of wheat could affect the broader market, the court said.

In the same way, the decision of uninsured people not to buy health insurance affects the interstate market and causes those who are insured to shoulder costs for the uninsured. In short, the commerce clause argument for a health-insurance mandate seems stronger than for New Deal wheat.

Another conservative argument is that a mandate violates the Fifth amendment's ban on the government taking property without due process of law. But that bar usually applies to real property and the insurance that the person receives might be seen as just compensation required by the amendment.

Finally, some scholars have been debating this week whether the mandate would be an unconstitutional direct tax. The consensus is that it is not. Taxing a person for not buying insurance is no different than for not filing an income return. Anyway, Congress could just call it a penalty rather than a tax.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.