Health reform and the Constitution

Regardless of where their political leanings take them, many Americans still wonder about whether the new health reform bill is or is not constitutional. Does the "individual mandate," the part of the plan that penalizes people who could pay for health insurance but don't buy it, somehow make the whole bill unconstitutional? Is it beyound the government's power to make people buy health insurance?

According to a recent New York Review article by David Cole, a law professor at Columbia University, that's easy. He says precedents over the past 70 years make it clear that the Commerce Clause and the Necessary and Proper Clause give the government full power to regulate all salient aspects of the insurance business - including taxing free riders who duck paying their share to the detriment of the whole system.

Congress certainly can tax to provide health insurance - it does so already through Medicare and Medicaid. Likewise, Congress has ample authority to enact the individual mandate. Absent a return to a constitutional jurisprudence that has been rejected for more than 70 years, Cole says, "the individual mandate is plainly constitutional."

(Incidentally, I recently learned that such a mandate has been a central part of Republican health-care thinking since 1991 - a response to the dreaded "single-payer" reform favored by liberals. Only after the GOP failed to stop Obama's reform bill did they decide to try to convince the courts it was a new and unconstitutional regulation.)