Fox Business Channel’s David Asman asks, if the health coverage mandate included in the Affordable Care Act is unconstitutional, wouldn’t Social Security also be? At first glance, perhaps.
But the drafters of the Social Security Act were more careful – or less ambitious – than those who wrote the Affordable Care Act. The Roosevelt administration was aware of potential constitutional issues, having been knocked down by the Supreme Court over previous attempts to expand federal powers as part of the New Deal.
As a result, Social Security was structured in two parts: a tax based upon your wages and a benefit based upon your wages, but not a benefit based upon your taxes. This separated out the question of whether the federal government could run, and citizens be compelled to participate in, what looked very much like a private insurance plan.
Moreover, the Supreme Court ruled on the constitutionality of Social Security during the period in which it was threatened with being “packed” with new members more amenable to the administration’s views.
The downside for believers in limited government is that, even if the health coverage mandate is ruled unconstitutional, such a ruling doesn’t say anything of great substance about the federal government’s power to effectively mandate the purchase of health coverage or, for that matter, pretty much anything else. It merely says that future designers of a health coverage mandated will have to be more careful in how they structure and draft their legislation. From my perspective, that’s a disappointment.