The Constitutionality of the Health Care Mandate

Senator Hatch, Eugene Volokh, and Randy Barnett speak about the constitutionality of health care mandate at the Heritage Foundation

Speaker(s):

Introductory Remarks by:

The Honorable Orrin Hatch (R-UT) Member, United States Senate

Followed by a Discussion with:

Randy Barnett Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

Eugene Volokh Gary T. Schwartz Professor of Law, UCLA School of Law, and Founder, “The Volokh Conspiracy” Blog Host(s):

Todd Gaziano Director, Center for Legal and Judicial Studies, The Heritage Foundation Details:

Can Congress require all Americans to buy a new Buick every year or pay a tax equivalent to the price of a used LeSabre? Some members of Congress claim that power in the health care debate. Indeed, all the leading health care bills being debated in Congress require Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated to cost up to $15,000/year for a typical family. Such a purchase mandate has never been attempted. The purpose of this forced purchase, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize the coverage for others. Sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or through the gimmick of unconstitutional tax penalties. The sponsors have struggled to analogize and justify the mandate under existing federal laws and court decisions, but those efforts all fail under serious scrutiny. Senator Orrin Hatch and a growing number of Congressmen argue the mandate is unconstitutional as a matter of first principles and under any reasonable reading of constitutional precedents, and it is very unlikely the Supreme Court would devise or extend current constitutional doctrines to save them.

The Heritage Foundation has assembled a panel of distinguished constitutional scholars to discuss the issue and its ramifications for the larger bill. Professor Barnett, who argued the most relevant case before the Supreme Court, will explain why the individual mandate is unconstitutional. Professor Volokh will probe that view to see if there is some way that the Congress or the courts might be able to save it. Join us for a most interesting and important debate.