David Frum

03.27.12

Readers Support the Individual Mandate. SCOTUS Judges Are Less Eager.

Today we asked, "Do you think the individual mandate is constitutional?" The results were as follows:

Yes: 77%
No: 22%
Other: 1%

Though reports from today suggested that the Supreme Court's justices are skeptical of the individual mandate, a strong majority of our readers believed the individual mandate, central to Obama's healthcare law, should be upheld by the Court.

Many readers thought the mandate should stand not just because it is constitutional, but also because it is good public policy.

Ajay P:The individual mandate isn't simply constitutional, but necessary for the appropriate function of health insurance. Most peoples' myopia regarding their own health combined with the legal and moral imperative to care for the sick creates the perfect storm for increasing health costs. So, unless we truly are willing to "let him die," we should support the individual mandate. Not even necessarily because we believe that we may be without insurance one day, but because we want to keep costs down in the future.

As we mentioned earlier today, much of the debate centers on the history of interpretation of the Commerce Clause.

Paul W:The Commerce Clause may have been used in the past to enforce social legislation such as the Civil Rights Act (and we can argue the merits of that action until we're all blue in the face, which ironically would help end racism if we're all the same color but I digress), but health care IS a business and so falls under the power of Congress to regulate.

But the issue, now as much as ever, is fraught with uncertainty. It would not have reached the Supreme Court if it was not a controversial subject, and the history of case law doesn't offer definitive answers, as one reader pointed out:

Adam K: An impossible question to answer. By today's N&P jurisprudence, yes. By one which even nods to the original meaning and intent, no. And that's not even considering the infringement on freedom of contract which would make all such mandates unconstitutional in the Lochner era, but not anymore, but maybe should.