There has been a lot of talk lately about the constitutionality of the health insurance mandate. The right seems to want to point to the tenth amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Yesterday Nancy Pelosi’s office clarified that the right of Congress to mandate people to buy insurance lies in Article 1:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To me using this part of the Constitution doesn’t lay much credit to Pelosi’s argument. There is a section of Article 1 that seems to provide this power more so to Congress:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

In particular the part of the “general Welfare of the United States”. In constitutional terms Welfare is defined as:

health, happiness, or prosperity; well-being

But using that as the reason for enforcing a mandate can cause the Democrats problems. Quickly it will be painted as “taxing” the people, and the Republicans will capitalize on this. That’s why a better solution for health care would be a full public option, even if it requires an increase in the tax rate. Make this fully transparent and to offset the increase in the tax rate Congress can provide health care insurance costs as a write-off up to the maximum amount of the tax increase. That way people paying for health insurance wouldn’t feel that they were paying for everyone else, even though they are as it is.

This would become a big win for Congress if they took this route. At the end of September nearly 2/3rds of the respondents told a Reuters poll that they would be willing to pay higher taxes to fund health care reform. That’s huge support and shows a willingness for people to pitch in to make our country healthier. Given that support Congress should drop the “mandate” and instead figure up a way to include this in the tax system.

Back on the argument of the constitutionality of the mandate, I can see Congress having the power from what I pointed out above, yet there is one big argument the Democrats are using that is a loser for this. I noticed this in the comments on Think Progress and been wanting to post on it for awhile:

And yet, when they said it’s the law to have driver’s insurance, where was the outcry? Consistency people!

There is a very simple counter argument to this defense – where does the Constitution require people to drive? The courts have ruled numerous times that driving is not a “right” but rather a “privilege”, unlike life which is a right. Using the above argument, which I have heard members of Congress even use, is very weak. Mandated health care is really something new, and it will be open to a lot of tests in the courts. Given the conservative lean of the Supreme Court I wouldn’t be surprised to see the mandate challenged all the way up to the highest court and them ruling it unconstitutional. Given that it would be a much better solution for Democrats to stop playing wordsmith and call it what it is – a tax – a tax supported by almost 2/3rds of this country.