WASHINGTON — Republican Sen. John Ensign has inserted a complicated legal question into the health care debate: Can the federal government require Americans to buy health insurance?
The health bill before the Senate would mandate that all Americans carry health insurance policies by 2014, with the government providing subsidies to help low- and middle-income families pay for them.
Those who don't buy insurance would face fines that rise gradually to $750 — or a maximum of $2,250 per family.
Since when does the government have the right to mandate that you buy something? Ensign asked.
Ensign, of Nevada, asked for a vote this week on whether the legislation's mandate is constitutional.
"If so, what's next?" Ensign said. "We can simply require Americans to buy certain cars, dishwashers or refrigerators. Where do we draw the line? Or do we draw one at all?"
Constitutional scholars generally agree the proposed mandate would hold up under Supreme Court scrutiny, but they do not deny a robust discussion of the issue is unfolding in legal circles.
The Constitution provides Congress with broad powers to form a more perfect union, establish justice, provide for the common defense, promote the general welfare and so on.
One of the final lines explaining the power of the legislative branch offers that Congress can make "all laws which shall be necessary and proper" to carry out all the other laws. The Supreme Court in 1819 interpreted this as giving Congress great deference in deciding what it can and cannot do, a ruling that has been upheld many times, said Eugene Volokh, a professor at the UCLA School of Law.
The reasoning behind the proposed mandate goes like this: If all Americans are required to buy insurance, the young and healthy, who tend to require less care, will help pay the costs of the old and sick, spreading risks that could lead to lower costs overall. Because the United States requires emergency rooms to treat everyone who shows up, regardless of their ability to pay, those who have insurance pay higher premiums to cover the costs of those who do not.
"This would be historic," said Randy Barnett, a professor at the Georgetown University.
"They're making a private citizen enter into a contract with a private insurance company," he said. "It is a new thing."