Argument: Mandatory health insurance not analogous to car insurance
Randy Barnett, Nathaniel Stewart and Todd Gaziano. "Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional." The Heritage Foundation. December 9, 2009: "Personal Health Insurance v. Drivers' Auto Liability Insurance
Some have argued that a federal mandate requiring all citizens to obtain health insurance is no different than state laws that require licensed drivers to carry proof of auto insurance when driving on the public roads. But there are several important constitutional differences that render the comparison decidedly inapposite.
First, there is a fundamental constitutional difference between the inherent police powers of the states and the enumerated powers of the national government. A bedrock principal of the American republic is that, whereas states enjoy plenary police powers (albeit subject to various constitutional limits), the national government is limited to the enumerated powers "herein granted" to it by the Constitution. Thus, states may craft numerous regulations for the protection of their citizens which are beyond Congress's power. In striking down the federal Gun-Free School Zones Act, the Lopez Court acknowledged that the states already enforced similar criminal laws even though Congress could not. Likewise, when it struck down the federal tort action for rape in Morrison,the Court did not question state laws allowing similar causes of action. State laws regulating the level of insurance that licensed state drivers must have to operate on state roads stem from a completely different source of constitutional authority--a state's police power--than Congress can invoke. Congress has never been thought to have such power, and the Supreme Court has always denied that such plenary federal power exists.
Second, automobile insurance requirements impose a condition on the voluntary activity of driving; a health insurance mandate imposes a condition on life itself. States do not require non-drivers, including passengers in cars with potentially bad drivers, to buy auto insurance liability policies--even though such a requirement undoubtedly would lower the auto insurance premiums for those who do drive. The auto insurance requirement is linked to driving and to the possibility that bad driving may cause injuries to others, including passengers in the driver's car, not to those who benefit from roads generally.
Third, state auto insurance requirements are limited to those who drive on public roads. The public roads are mostly constructed, owned, and maintained by the government, or in some other cases, are built on public rights of way or through the use of eminent domain. What a state (or private citizen) may require of someone using its property is wholly different than what it may do to control their purely private behavior. Driving on government roads is a privilege--one easily distinguished from merely living. For those who choose to drive on public roads, the state can establish terms and conditions reasonably related to preventing injury to others. States may issue drivers licenses, establish and enforce traffic laws, and may require that all those driving on their roads be adequately insured to compensate others for their injuries. These same rules do not extend to driving on private roads or property. Indeed, one may drive vehicles on private property without ever obtaining a state driver's license. Finally, states require drivers to maintain auto insurance only to cover injuries to others. The mandate does not require drivers to insure themselves or their property against injury or damage. Thus, the auto insurance requirement covers the dangers and liabilities posed by drivers to third parties only, even though many of those same risks apply to the driver himself. The auto insurance mandate seeks to avoid the all-too-common problem of an uninsured and insolvent motorist severely injuring a third party on a public road, leaving the injured party to cover her own medical expenses. But the driver remains free to assume the risk that she will injure herself, even if she is insolvent to pay for her own expenses. Thus, states only seek to ensure that drivers can pay the equivalent of tort judgments for their wrongful conduct to others on state roads; they do not tell drivers how to take care of themselves.
Therefore, comparisons between a federal mandate for personal health insurance and the state auto insurance requirements are specious. The dissimilarities between the two types of schemes actually illuminate how Congress's new "personal responsibility" mandate is without precedent in policy and, for this reason, lacks any precedent in constitutional law. Whether or not Congress has the power to establish a national "single payer" health care program by using its powers to tax and spend, such a program would not be supported by the Constitution's Commerce Clause. Any power to establish a national health care program simply does not entail the distinct constitutional power to compel persons to purchase a contract of insurance from a private insurance company."
Peter Urbanowicz and Dennis G. Smith. "Constitutional implications of an 'individual mandate'" Federalist Society: "The “individual mandate” policy rationale is similar to the policy justification for requiring all drivers to maintain automobile insurance as a pre-requisite to maintaining a drivers’ license. Nearly every state now has a law mandating auto insurance for all drivers. But the primary purpose of the auto insurance mandate was to provide financial protection for people that a driver may harm, and not necessarily for the driver himself. And the auto insurance mandate is a quid pro quo for having the state issuing a privilege: in this case a driver’s license."