Why the mandate is constitutional

The luck of the draw wasn’t kind to Virginia Attorney General Ken Cuccinelli: The three-judge appellate panel randomly assigned by computer to hear the appeal of his suit challenging the constitutionality of health care reform came up with three judges appointed by Democrats. If recent history is any guide, they will find uphold the individual mandate as constitutional. So far, every judge appointed by a Democrat has ruled in favor of the mandate; every judge appointed by a Republican found the mandate unconstitutional.

That’s an unfortunate partisan breakdown from the judicial branch, which should be insulated from politics.

But while luck was against Cuccinelli, so is the law. The individual mandate is constitutional, and the key of the argument for it can be found in Cuccinelli’s own comments in a news conference following the hearing:

The insurance mandate penalizes people for not engaging in commerce.  In other words, you can get fined for doing nothing.

But the fact is that it is impossible to choose not to engage in the health care market. You can hope you won’t need health care. You can pray you won’t need it. You can save and scrimp so that you can pay routine health care bills yourself. But the way the current system is set up, only incredibly wealthy Americans can guarantee they will never need more health care than they can afford.

The individual mandate, then, does not penalize people for choosing not to engage in commerce. It penalizes people for expecting society to cover their costs if they unexpectedly fall ill or are involved in a serious accident.

No one argues that the health care market is not subject to congressional regulation under the Interstate Commerce Clause. And when the argument is correctly framed, it is also pretty clear that the individual mandate is a rational and proper exercise of that regulatory authority.

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