Law Center Prof. Seth Chandler squared off with a representative of the Heritage Foundation in a lively debate over the constitutionality of the individual health insurance mandate. “Lively” translated into each debater loudly and definitively declaring his opponent “wrong.”
Chandler, co-director of the Law Center’s Health Law & Policy Institute and an insurance specialist, argued that the mandate is a tax – which makes it constitutional under the interstate commerce clause. Todd Gaziano, director of Judicial and Legal Research at the Heritage Foundation, a conservative think tank based in Washington, D.C., said the individual mandate is a tax penalty and, if it stands, would represent the first time that citizens could be penalized for not doing something. If a person decides not to buy a product, they are definitely not engaging in interstate commerce, he asserted.
The two debated the controversial provision of the recently enacted healthcare reform bill during a luncheon session sponsored by The Federalist Society.
Chandler said taxation to provide health coverage is certainly constitutional and doesn’t equate to some of the more extreme notions put forth by opponents. “Health insurance is special,” he said, adding that lack of universal coverage would lead to irreparable harm within the health care system. “This is not the same as requiring the public to buy a Chevrolet Impala,” he said. Gaziano disagreed: “If this stands,” he said, “there is no limit to what Congress can do.” What’s next, he asked rhetorically, can Congress require health club memberships? “The Supreme Court has never before attempted to force Americans to buy a particular product,” he said.
He added that there are any number of ways Congress could ensure 100 percent health insurance coverage without this law. Chandler said he might agree that the law is unwise, but that doesn’t make it unconstitutional.