Published February 26, 2010
1. Can the federal government compel a person to have health insurance? Congress may regulate interstate commerce, pursuant to power granted to it in the Constitution. The original grant of this power meant “to keep commerce regular,” that is, to assure that the states do not interfere with commerce by imposing tariffs on the movement of out-of-state goods into their states. Over the years, the Congress has pushed the envelope and regulated more than just commerce; it has regulated the salaries and working conditions and costs of those who manufacture goods that move in interstate commerce. The courts, as well, over the years have gone along with this. But the Congress has never compelled individuals to engage in interstate commerce by forcing them to purchase anything. My view is that this is unconstitutional, as well beyond the power given to Congress.
2. Why can’t I buy health insurance from whatever carrier is willing to sell it to me? In 1946, in response to the return of 2.5 million persons to the workforce from the military, Congress enacted wage and price controls. Thus, employers could not dangle high paying jobs to entice workers to come to work for them, but they could and did offer health insurance as an inducement to attract new workers. In response to this, Congress prohibited the movement of health insurance policies in interstate commerce. Stated differently, all regulation of health insurance was left to the states, and the states can and did prohibit the sale of health insurance policies from carriers in one state to customers in another. The states accepted and used that power with relish. Thus, for example, New Jersey will only allow insurance carriers in New Jersey to sell policies there and it prohibits its residents from buying policies from carriers in other states. This, in turn, permits state regulators to require that customers purchase so-called Cadillac plans--ones that offer top-of-the line services that the purchaser could not need and would never use. This keeps the cost of these policies up. My opinion is that this, too, is unconstitutional as the interstate commerce clause was written “to keep commerce regular,” not to restrict or prohibit it.
3. Is tort reform constitutional? Many Republicans have argued that trial lawyers have filed frivolous lawsuits against health care providers and that has caused their insurance carriers to seek higher premiums on the providers’ malpractice policies, and those costs have been passed on to patients. In fact, all states have laws against frivolous lawsuits, and lawyers are frequently forced to pay the legal fees of those whom they have wrongfully sued. Moreover, well over 95% of all health care malpractice litigation takes place in state courts. The states run their own court systems. Congress is powerless to tell the states what awards juries should give or who can be sued in the state court systems. Thus, in my opinion, so-called federal tort reform would be unconstitutional as a congressional invasion of the powers retained by the states when they joined the Union.
4. Is there anything in the Constitution that empowers Congress to regulate health care or get between patients and their physicians or empower bureaucrats to tell physicians how to practice medicine? In a word, NO. Here is a kinky example. Last week, Sen. Frank Lautenberg (D-N.J.) collapsed in his apartment in Cliffside Park, N.J., a few miles south of the George Washington Bridge. When he called an ambulance and it arrived, he directed the driver to bring him to Mt. Sinai Hospital in New York City. That direction is today perfectly lawful. Under all three health care proposals (the Senate, House, and presidential versions), such a direction would be unlawful; as an ambulance would be forced to take a patient to the hospital closest to the patient; in Sen. Lautenberg’s case, a small community hospital a few blocks from his apartment. Sen. Lautenberg voted for the Senate proposal that would have denied him the free choice that probably saved his life.
Judge Andrew Napolitano is Fox News Channel's senior judicial analyst and a regular contributor to the Fox Forum.