The CBO's word on the constitutionality of mandates

Via Verum Serum and Ed Morrissey comes a link to a report that the CBO wrote in 1994 when Hillary Clinton's health care plan was considering an individual mandate to force people to buy health insurance. Back in 1994, the CBO cast serious doubt on the constitutionality of such a mandate. Check out what the report says, starting on page 11.

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

Federal mandates typically apply to people as parties to economic transactions, rather than as members of society. For example, the section of the Americans with Disabilities Act that requires restaurants to make their facilities accessible to persons with disabilities applies to people who own restaurants. The Federal Labor Standards Act prohibits employers from paying less than the federal minimum wage. This prohibition pertains to individuals who employ others. Federal environmental statutes and regulations that require firms to meet pollution control standards and use specific technologies apply to companies that engage in specific lines of business or use particular production processes. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law. (Emphasis added)

Constitutional scholars might disagree. Edwin Chemerinsky thinks it's clear that Congress has that power. But, as the CBO found out in its earlier report, it's something that has never been done before. And unprecedented congressional actions often find their way to the Supreme Court. We'll have to wait and see what five justices say. Somehow, I can't see them canceling out a major provision of a health care reform. However, we should be aware that if the individual mandate goes through, that will, if history is any guide, not be the end of the mandates that the federal government would be able to impose on individuals to force people to buy what the government has decided is good for us or what they need to do in order to pay for some future government plan.