Mandate to buy health insurance might not be constitutional

The individual mandate to buy health insurance is a key part of the Democrats' health-care plan. Their package, if they can pass it now, doesn't work without the mandate. But is it constitutional?

Sen. Patty Murray, a Democrat, who has been working to pass it, said it is, easily. "We have done it before," she said, noting that Social Security, which is federal, is mandatory insurance.

But when it came to the Supreme Court in 1937, Social Security was approved as a tax and a spending program. A single-payer plan might be approved that way, but not the current plan. This is mandatory private insurance.

Requiring people to buy that, former Sen. Slade Gorton, a Republican, told me, is "clearly and blatantly unconstitutional." He immediately sanded down that statement, however, by saying the Founders would have thought it so. Today's Supreme Court would split on it, he said, and "it will probably be Justice Kennedy who decides it."

The argument against the mandate is that it exceeds the powers of Congress. The Constitution lists these powers in Article 1, Section 8, from declaring war and fighting pirates to imposing taxes, borrowing money and running the Post Office. They describe a small government. It has grown large by stretching one thing on the list, the power "to regulate Commerce ... among the several States ... " This has been interpreted to cover all activities that affect commerce, from racial discrimination to growing marijuana to a hundred other things.

As it said "yes" to federal power, one claim at a time, the Supreme Court kept saying there was a limit. There had to be, otherwise the commerce power would swallow up all the others and federal power would be unlimited. But in 75 years the Supreme Court has only twice said a law exceeded that limit: a gun law and a rape law. Both cases were decided 5-4, with the swing vote Justice Anthony Kennedy's.

Now comes the mandate to buy health insurance. "The question," said attorney David Rifkin, who spoke to the Federalist Society in Seattle last fall, "is how to shoehorn this into the Constitution."

For some, it is easy. Stewart Jay, who teaches constitutional law at the University of Washington School of Law, and has written several histories on constitutional law, said: "Congress is allowed to regulate economic activity, and buying insurance is an economic activity."

Case done.

Rifkin, of Baker & Hostetler, Washington, D.C, said, "there is something really weaselly about that argument." The commerce power has always been about regulating an activity. And Rifkin said, "Is refusing to purchase insurance an activity?"

Attorney General Rob McKenna is among a group of Republican state attorneys general who may challenge the individual mandate on just that point.

"My opinion," said McKenna, "is that it isn't clear where the federal government would derive its authority to force individuals to buy health insurance. These are individuals who have chosen not to participate in commerce."

I like McKenna's argument because I like where it goes. I don't want government to tell me how to spend the money I have left over after paying taxes. The state government may do it — with car insurance, for example — and that's enough for me.

The Supreme Court could go either way on this. In the end, it comes down not to who's "right" about the law, but about what people want.

Bruce Ramsey's column appears regularly on editorial pages of The Times. His e-mail address is bramsey@seattletimes.com