The Health Care Debate - Constitutional or Not?

Steve Strauss, founder of, discusses the constitutionality of the current health care debates happening before Congress.

Q: Steve: I own my own micro-business and was wondering whether you care to weigh in on the health care debate before the Supreme Court. I just don’t get how Congress could pass a law that makes me buy health insurance. Personally, I think it is un-American.



A: The easy, the visceral, thing to do in this case is to say – “Congress doesn’t have the right!” Right?

But actually, it just might have that right.

Today, let's look at those few fascinating words in the Constitution that make up the doozy called the Commerce Clause, because that is the crux of this whole enchilada, and before you get bored and surf on after reading the words “Commerce Clause” let me suggest that understanding the Commerce Clause is not only vital for an informed electorate, but in fact insofar as small business goes, just may be the 16 words that change forever how you buy health insurance for you and your staff.

Let's start with the easy stuff:

You have to buy auto insurance if you want to drive, don’t you? And you have to wear a seat belt, don’t you? And you have to stop at red lights, right? There are all sorts of things legislatures tell you to do and not do. That is what a law is: It is a directive that you can or cannot do something.

Is telling you to buy health insurance all that different? Maybe, but maybe not.

Consider: In 1964, Congress passed the Civil Rights Act. There it told individuals and businesses that they could not discriminate based on race, color, religion, or national origin.

And that then begs the question: Is telling someone they have to sell coffee to someone really that different than telling someone they have to buy insurance from someone?

The question goes to the heart of the Commerce Clause.  The clause comes from Article I, Section 8, Clause 3 of the Constitution. It says that Congress shall have the power to “regulate Commerce  . . . among the several States.” The commerce clause has, almost since our founding, been adjudicated to mean that Congress has broad powers to regulate interstate activities.  

How broad are those powers? That is the debate today, and has been for some time. The broad scope of the Commerce Clause was first enunciated in 1824, in Gibbons v. Ogden, when the Court ruled that the power to regulate interstate commerce was broad enough to include the power to regulate interstate navigation over water.

In 1914, in Houston E&W Texas Railway Co. v. U.S, the Court said that,

[I]n all matters having such a close and substantial relation to interstate commerce . . . it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority and the State, and not the Nation, would be supreme within the national field.

In subsequent years, the Court, when liberal, expanded powers under the Commerce Clause, and then, beginning with the Rehnquist court in the 80's, began to limit those powers.

So the issue today is two-fold:

  1. Does Congress have the power under the Commerce Clause to enforce an individual mandate, and
  2. Are there individual liberties at stake that trump that power?

That the decision to buy or not buy health insurance substantially impacts interstate commerce almost goes without question. And that then brings us to No. 2, the hard stuff. Even if the commerce clause is applicable, is this one of those places where it needs to be limited?

You have your opinion, I have mine. Before I share mine, I would also like to share two short, illustrative health care stories I recently heard:

1. A good friend just got back from Southeast Asia. While there, she met several Americans who travelled there as “dental tourists.” One was there to get some work done that would cost her $10,000 out of pocket here in the States, at about 1/10th of the price.

2. A self-employed acquaintance here went in for a nuclear stress test. He and his wife budgeted $5,000 for this, as that is their deductible for the year.

So clearly something needed to be done, the question is – was this it?

While I think the law is a gargantuan mess in some ways, it seems that our health care system is even more so. I further believe that we are all in this together, that we are one nation, not just a bunch of individuals, and insofar as health care goes, your decision not to buy it directly effects how much I will pay when I do buy it.

So, especially given the fact that Romneycare in Massachussets has seemd to both cover more people and lower costs, and while I hold my nose, I am glad that Congress tried to tackle one of the most significant issues small businesses face – health care costs and deliverability.

I hope the law is upheld.