The Federalist Society is having an online debate concerning the following question: “Would a federally-imposed individual mandate to require health insurance be constitutional?”
Prof. Erwin Chemerinsky is a Professor of Law and Professor of Political Science at Duke University School of Law is arguing that it is constitutional. David B. Rivkin, Jr. is a Partner at Baker & Hostetler is arguing that it is not. Below I have included a snip of their arguments.
Erwin Chemerinsky: There is no constitutional problem with Congress requiring that individuals purchase health care or pay a penalty. There is much to debate over health care reform and how to achieve it, but I have no doubt that the proposals would be constitutional.
The constitutional objection that I have heard most often is that Congress lacks the authority under Article I of the Constitution to do this. But such a mandate clearly falls within the scope of Congress’s authority to regulate commerce among the states….
David B. Rivkin: There is no doubt that Congress can regulate an entire array of economic activities, large and small, inter- and intra-state. Thus, for example, there is no problem, Constitution-wise with having Congress regulate health care insurance purchase transactions. The problem with an individual insurance purchase mandate, however, is that it does not regulate any transactions at all. It regulates human beings, simply because they exist, and orders them to engage in certain types of economic transactions.