by David B. Rivkin, Jr. & Lee A. Casey & Jack Balkin
Health
care reform has been and continues to be one of the highest priorities
in the Obama Administration’s domestic agenda. The proposals
for reform played a major role in the debates leading up to President
Obama’s election and dominate the Administration’s, and Congress’s,
current domestic activities. While most policymakers seemingly
agree that reform is necessary, there is much disagreement about the
particulars of the appropriate reform. One of the more contested
features is the so-called individual mandate—a federal requirement
that every American possess a certain level of health insurance.
In
A Healthy Debate, David Rivkin and Lee Casey debate Professor Jack
Balkin over the constitutionality of such a mandate. In their
Opening Statement, Rivkin and Casey argue that if Congress has the power
to reform the health care system, it must be found in the Commerce Clause.
After examining the limitations that the Court has set out in its modern
Commerce Clause jurisprudence, Rivkin and Casey conclude that the mandate
is even less defensible that the laws struck down in United States
v. Morrison or United States v. Lopez. And it is no
answer to claim that the power to implement the mandate can be found
in the Taxing and Spending Clause. Even under that clause, Congress
cannot use a tax to regulate conduct that is otherwise indisputably
beyond its regulatory power.
