A Better Constitutional Basis for National Health Care

One of the things that bothers me about the ACA/Obamacare is that it relies heavily on the Commerce Clause of the constitution rather than the government’s power to levy taxes. This is also the weakness that the Supreme Court may exploit in striking down the law.

The Commerce Clause

In part, the choice to rely on the commerce clause arose from an immediate political concern: with the chance of passage growing increasingly dim in 2010 and with the economy still struggling, Democrats were reluctant to sign off on a new “tax” for an expanded health care program. So instead of legislating a tax that was coupled with an exemption for those who purchased health insurance, they passed a mandate to purchase insurance that was coupled with a penalty for non-purchase. Then, in order to justify the mandate and penalty, the administration pointed to the Commerce Clause as the root of the government’s Constitutional authority for this act.

The Commerce Clause (in Article 1, section 8 of the Constitution) states that Congress has the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes

Sometimes called the Interstate Commerce Clause, it has been interpreted to give the federal government broad authority to regulate economic activity that shapes the national economy. Historically, the government has also used this power to achieve social aims related to the economy, such as desegregation of interstate buses and ‘public accommodations.’

The difficulty is that we don’t know where it ends. In recent decisions regarding the regulation of marijuana, the Supreme Court has found that the federal government can regulate even locally grown and consumed drugs as part of a large effort to regulate the interstate (and international) drug trade.* Any line delineating a boundary to the Commerce Clause in our increasingly interconnected and interdependent society will necessarily be somewhat arbitrary. Where the Supreme Court will draw that line in the case of the ACA is anyone’s guess at this point.

The Tax Power

The tax power, on the other hand, seems like a much more solid foundation for creating a federal health care system. If we are going to pool our national resources to treat everyone on a citizenship basis, we should do so as straightforwardly as possible through the tax code. That’s the Constitutionally-approved method for raising revenue and there’s a wealth of precedent to support its use for social programs. There’s also a wealth of precedent for giving people tax exemptions and deductions for certain voluntary economic behaviors, such as the home mortgage deduction. No one has suggested that this tax break is somehow forcing people to buy homes (even though it’s clearly meant to encourage that behavior).

While I don’t think the government is on the verge of insisting that people buy cars or broccoli, I can understand why those challenging the ACA are worried about how far the Commerce Clause has been stretched. The straightforward adoption of a tax would have been politically more difficult (perhaps impossible at that moment), but Constitutionally above reproach.


* The contrasting positions of the parties on the matters of marijuana regulation and Obamacare is another telling example of the way that partisanship warps our public policy. Republicans challenging Obamacare are asking the Supreme Court to ignore Commerce Clause precedents established in the marijuana cases, where they were happy to have the DEA reach into local agriculture. Conversely, Democrats seeking greater allowance for local and state drug regulation should be wary of the ramifications of stretching the Commerce Clause to require the purchase of health care.


This is the fourth post in a series explaining why I favor a national health care system. For the introduction to the series and a list of the posts, click here. Or, for all my health care related posts, see here.

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