Among the elements of the health bill being considered by Congress is a requirement that every adult would either have to purchase a health insurance policy or face punitive fines to be collected by the Internal Revenue Service. There has been widespread debate in legal circles about whether the courts would uphold such a requirement, but lawmakers in several states are trying to do what they can to insulate their citizens from such a requirement. In Missouri, state Sen. Jane Cunningham has already persuaded half of her colleagues to cosponsor Senate Joint Resolution 25, an amendment to the state Constitution that would recognize the citizens’ right to decide for themselves whether they will participate in any health care system.

Under this amendment, the government would be denied the authority to prevent citizens from offering or accepting direct payment for health care services, and it would not be permitted to substantially limit the purchase or sale of health insurance in private health care systems. In addition to recognizing that this is a sort of common-sense freedom that ought to be enshrined in the Constitution, the proponents of SJR 25 are aware that state constitutions are permitted to afford liberties above and beyond those secured under the U.S. Constitution, and that there is a possibility the courts might find that even a federal statute cannot violate those additional rights.

This proposed amendment has sparked the interest of some in the media, including an article from the St. Louis Beacon (authored by William Freivogel, director of the School of Journalism at Southern Illinois University–Carbondale) with a headline suggesting that, if passed, SJR 25 would itself violate the U.S. Constitution. I quickly posted a rejoinder in the comment section of that article, but I felt it would be worthwhile to restate in this forum the points I made in those comments.

There are four major constitutional issues raised by the potential federal health insurance mandate and Sen. Cunningham’s proposed amendment: 1) Does the proposed law fit within the powers that the Constitution gives to Congress? 2) Does the proposed law infringe upon powers reserved to the states by the Tenth Amendment? 3) Does the requirement to buy health insurance unconstitutionally infringe upon the individual liberties secured to American citizens under the First, Fifth, and Ninth Amendments? And, 4) Does the Supremacy Clause allow for the enforcement of a federal statute even if that statute conflicts with individual rights protected under a state constitution? I’ll address these points in order.

As we all remember from high school, congressional authority is limited to those powers explicitly granted by the Constitution. In this case, the question would be whether the Constitution gives Congress the authority to punish citizens for refusing to purchase health insurance.

Those backing the bill suggest that this authority is part of part of Congress’ power “to regulate commerce … among the several states[.]” It is true that courts have generally interpreted this power very broadly, resulting in the decision that a farmer named Filburn was bound by agricultural regulations even though he was not taking his grain to market, as well as the decision that Angel Raich was subject to federal drug laws even though her medical marijuana was homegrown and neither bought nor sold.

But courts have also recognized limits to congressional authority under the Commerce Clause. In U.S. v. Lopez, the Supreme Court held that the Commerce Clause did not permit Congress to create a federal law banning possession of firearms in a school zone. In U.S. v. Morrison, the court struck down a law that addressed the subject of gender-based violent crime. The primary reason that the court struck down the laws in Lopez and Morrison was that the subjects Congress sought to regulate lacked a clear impact on commerce among the states.

While much of the health insurance industry is handled within the bounds of individual states (it is very unusual to be able to purchase insurance from a company in a state other than the one in which you are domiciled), I believe that courts will be inclined to find that health insurance as a whole is an issue with a sufficient connection to interstate commerce to permit congressional regulation. But, if Congress passes a bill mandating that individuals must either buy health insurance or face financial sanctions, courts will have to answer a very specific question: Does the power to regulate interstate commerce give Congress the authority to penalize citizens who do not wish to engage in commerce? As Prof. Randy Barnett pointed out at a recent Heritage Foundation debate, the Supreme Court has never faced such a question, so we cannot be certain how it will be answered. I tend to agree with Barnett that the Court’s response will likely hinge on the solicitor general’s ability to explain which aspects of citizens’ lives (if any) would remain beyond the reach of congressional regulation if the Court permitted these mandates to be enforced.

One of the law professors cited by Freivogel argued that even without relying on the Commerce Clause, authority for the health insurance mandate could be found in Congress’ power “to lay and collect taxes … [to] provide for the … general welfare of the United States[.]” I disagree. While this provision might permit the creation of a tax-based public health insurance system like Medicare that all workers pay into, this is not what is anticipated in the insurance mandate under consideration, which is neither tax-based nor public. Nor would the alleged “tax” be collected from all workers. Furthermore, even if the fees for failing to purchase health insurance were classified as a tax, Congress is specifically denied the authority to impose capitation taxes “unless in proportion to the census,” a requirement that this proposal does not seem to meet.

Assuming the courts were to determine that Congress does have the general authority to impose a health insurance mandate, the next question would be whether the issue should be reserved to the states under the Tenth Amendment. While Congress has for decades been active on the subject of health care, this does not necessarily imply that Congress may remove state governments’ ability to decide whether their citizens should be punished for failing to purchase health insurance. In fact, this is an issue that several states have previously dealt with, in which at least one state (Massachusetts) has adopted such a mandate and a number of other states have considered — yet refrained from — doing the same. Federal courts have previously been very willing to permit congressional interference even in areas that were traditionally the sole province of the states, but considering the current ideological composition of the Supreme Court, it is possible (although, admittedly, unlikely) that a majority might take this opportunity to redefine (or restore) the balance of power between the federal government and the states.

Most of the arguments I’ve heard so far regarding the proposed health insurance mandate have neglected to address whether it might violate the First, Fifth, or Ninth Amendments, but I think this is an oversight. The Supreme Court has previously recognized that the Constitution protects citizens’ rights to associate with others of their choosing, to enter into contracts, to make their own decisions regarding health care, and, of course, their right to privacy. A violation of any one of these rights could be sufficient to invalidate the health insurance mandate.

While some people may not carry health insurance because it is unaffordable, many choose not to purchase health insurance. Some people’s religions may not permit the use of modern medicine, while others may not believe it to be effective. Still others are simply confident enough in their propensity for health that they are willing to risk the costs of illness or injury in order to direct their money to concerns that they believe to be more pressing. And there are some who, recognizing that most people pay far more to insurance companies than they are ever likely to need for their own treatment costs, would prefer to self-insure by creating their own health fund. For each of these people, a congressional directive to purchase a health insurance policy would mean giving up a huge amount of money — as well as a significant amount of privacy — committing themselves to a contract for goods and services that they do not want, and in some cases may be prohibited from using.

There is a principle in American law that says the government may not punish someone for exercising a constitutional right, and neither may it offer a benefit on condition of the citizen’s willingness to refrain from exercising a constitutional right. In the case of an individual health insurance mandate, the government would be telling its citizens that if they choose not to associate with an insurance company by entering into a contract under which they will be required to pay large sums of money while also disclosing private information about their health, they will be subject to very large fines. I think that this is clearly an infringement of some, if not all, of the constitutional rights listed above.

Unfortunately, establishing an infringement of rights does not end the analysis. In fact, the Supreme Court has long permitted infringement of these kinds of liberty, as long as the government could advance what the court considered to be a sufficiently important interest in doing so. In the case of the individual health insurance mandate, the goal advanced by the government would be to bring about slightly lower insurance premiums and, thus, to increase the number of people with access to health care. This is just a hunch, but I suspect that courts will not find this interest sufficiently compelling to justify forcing citizens to purchase coverage that they do not want and may have no intention of using, particularly when doing so necessarily requires an invasion of their privacy.

My final point is that if the courts find that the U.S. Constitution does not afford citizens protection from being forced to participate in a health care system, the courts will have to decide whether the Supremacy Clause permits a federal statute to be applied in such a way that it violates an individual freedom recognized by a state constitution. As I pointed out in my first comment, it is very possible — perhaps even likely — that the courts will decide that these state constitutional amendments do not bind the federal government. It is important to note, however, that this sort of holding would not strike these provisions down as “unconstitutional.” Rather, it would simply prevent their application against the federal government — perhaps foiling the hopes of the state constitutions’ drafters, but certainly not preventing the effectiveness of the provision against state governments and their subdivisions.