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Painter: Necessary, Proper and the Individual Mandate

Next week, the Supreme Court hears oral arguments on the constitutionality of the 2010 health care overhaul’s individual mandate, which requires most Americans to purchase health insurance starting in 2014 or pay a monetary penalty.

The question is whether the individual mandate is within Congress’ power to regulate interstate commerce (“Commerce ... among the several States”) or is “necessary and proper for carrying into Execution” that power.

It’s hard to see how the individual mandate is a regulation of interstate commerce. How can the failure to purchase health insurance be considered commerce, let alone interstate commerce? If it is, what can’t Congress force us to purchase?

For that reason, the outcome of the case should turn on whether the Obama administration can show that the individual mandate is both “necessary” and “proper” to carry into execution Congress’ power to regulate interstate commerce.

In making that argument, the administration faces a dilemma — to meet the “necessary” test, it is forced to make legal arguments that fail the “proper” test.

The administration relies on two legal theories to argue the individual mandate is “necessary”:

• Under an established Supreme Court doctrine, Congress may regulate activity that is neither interstate nor commerce if it “substantially affects interstate commerce.” The administration says the failure to purchase health insurance “substantially affects” interstate commerce because, in the aggregate, people without insurance don’t pay all of their medical costs and that causes higher insurance premiums for everyone.

• Under a theory proposed by Justice Antonin Scalia (but never adopted by the Supreme Court), Congress may regulate purely local activity that doesn’t substantially affect interstate commerce if it is “essential to a broader scheme to regulate interstate commerce.” The administration says the individual mandate meets that test because the health care reform law won’t work without it. (The reason has to do with requirements for insurers to cover pre-existing conditions and resulting incentives for people to forgo insurance until they are sick.)

If these legal theories justify the individual mandate, what are the outer limits of Congress’ commerce power? Can Congress force people to get checkups, purchase healthful foods, join a health club or even exercise on the theory that failing to do so increases medical costs and overall insurance premiums? Can Congress mandate other purchases or private conduct by adopting a permitted regulatory program that won’t work without a mandate and then imposing the mandate?

The administration tries to avoid these questions by saying health care is unique because it is inevitable, unpredictable and costly. But that isn’t a constitutional principle. And, in any event, it doesn’t prevent future intrusive health care mandates.

Assuming the individual mandate meets the “necessary” test, it must also meet the “proper” test, which the Supreme Court has said is satisfied only if a law is consistent with “the letter and spirit of the Constitution.”

On its face, the individual mandate fails that test.

• It abandons the long-standing legal principle that legally binding contracts require mutual assent and cannot be coerced. This crosses a line the federal government has never crossed and effectively tramples on “The powers ... reserved ... to the people” under the 10th Amendment.

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