Insurance Mandate & Eminent Domain
Last week I commented quite a bit about Obamacare (for instance, see here and here), and shared my opinion that the bill’s healthcare mandate is bullshit unconstitutional. In the comments of this post, loyal Dueling Barstools reader (and lawyer for hire) Cavan offered an interesting legal theory to legally support the mandate. Assuming a commerce clause argument to support the mandate would fail, Cavan wondered if an eminent domain argument might work.
The merits are political. But legally I don’t see how the commerce clause can support this–maybe emminent domain, a-la, Kelo–we take property (money) from one private citizen and give it to another… but then they have to give just compensation, which legally means market value in $$. This law is a tax pure and simple; it takes property without giving just compensation. It took a constitutional amendment to get income tax going, and it should take the same here.
Seeking to provide Cavan (and the legions of DuelingBarstools readers who, strangely, rarely comment) a more cogent response than I can offer, I emailed Robert Thomas, an acclaimed appellate lawyer in Honolulu and author of Inversecondemnation – the gold standard for commentary on regulatory takings, eminent domain, inverse condemnation, property rights, and land use law. Robert was kind enough to consider my email, and provided the following response:
Eminent domain is not supposed to be punitive. (But neither are taxes, but we all know the tax power can be abused that way.) The more punitive an exercise of eminent domain looks, the less it would appear to a court that it is being exercised for a public purpose.
And as a practical matter, seizure under the eminent domain power really would not make much sense as a punitive tool, since the constitution requires just compensation to be paid. So if a citizen didn’t purchase health insurance and the government took her property by eminent domain, she would have to be paid for the property, resulting in zero gain for the government.
What it sounds like the commenter is really asking is whether the government can simply seize assets (not by eminent domain, but as a forfeiture) if someone doesn’t comply, along the lines of what happens to the assets of alleged drug dealers. Asset seizure for violating criminal law is not “eminent domain,” and is a whole different application of law.
So, eminent domain theory will not support the healthcare mandate. For more information see Inversecondemnation’s recent roundup of eminent domain / takings multimedia, including this Reason video, which discusses a particularly controversial example of eminent domain abuse in New York.
I was lucky enough to meet Clint Bollick (of the Goldwater Institute) last year. He is doing some really cool stuff with eminent domain.
Richard Epstein is the guy who, as far as I know, pioneered the idea that all taxes are, at least conceptually, an exercise of emminent domain. Essentially, the government takes your money and justly compensates you with services.
For the reasons Richard Thomas pointed out… it really can’t support a healthcare bill. Although I like his forfeiture angle.
You should be like Facebook and add a “Like” option to comments–would increase your feedback. I often like and/or appreciate the posts but just don’t have a meaningful comment ready to go.
Cavan
Like.