David Rivkin – Opposing the Mandate Before It Was Cool

The WSJ has republished an op-ed opposing an individual mandate to purchase health insurance by David Rivkin from September 29, 1993. This op-ed was published challenging the constitutional basis of both the Clinton health care plan and the alternative pushed by some Republicans at the time that featured an individual mandate. Here is an excerpt:

Where, exactly, does the U.S. government get the power to require that every one of its citizens must participate in a government-sponsored health care plan? Ask this of a health care reformer and he, or she, will sniff, think a moment, and (if legally trained) will immediately utter the two most magic words in late 20th century constitutional jurisprudence—Commerce Clause.

If the legality of a health care package featuring federally mandated universal participation is litigated (and we can bet it will be), and the system is upheld, it will mark the final extension of this originally modest grant of federal authority. Thereafter, Congress will be able to regulate you not because of who you are, what you do for a living, or whether you use the interstate highways, but merely because you exist. . . .

The final test, however, has come. In the new health care system, individuals will not be forced to belong because of their occupation, employment, or business activities — as in the case of Social Security. They will be dragooned into the system for no other reason than that they are people who are here. If the courts uphold Congress’s authority to impose this system, they must once and for all draw the curtain on the Constitution of 1787 and admit that there is nothing that Congress cannot do under the Commerce Clause. The polite fiction that we live under a government of limited powers must be discarded — Leviathan must be embraced. . . .

Once Congress’s power is extended to every individual not because of his activities, but because he is, limits on its power will depend upon the fortitude and creativity of the courts. No American, whatever his policy views on health care reform, should rejoice at the disappearance of the last fragments of the principle that the federal government is one of limited powers. It is indeed ironic, and sad, that as the rest of the world is discovering the virtues of limiting their governments, the U.S. seems hellbent on unleashing its own.

It’s worth noting this op-ed was written prior to most of the Rehnquist court’s federalism decisions, including United States v. Lopez.