Gallup poll: 72 percent of Americans call individual mandate ‘unconstitutional’

Jason Howerton Contributor
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Even among Americans who support President Obama’s health care overhaul, a large majority believe that the law is out of step with the U.S. Constitution, a Gallup poll released Monday revealed.

The poll, conducted Feb. 20–21, indicates that 72 percent of Americans believe the individual mandate — the government’s requirement for Americans to purchase health insurance — is unconstitutional. Even among Americans who feel the president’s health care law is a “good thing,” 54 percent think the provision is unconstitutional.

Just 37 percent of Democrats said the individual health care mandate is constitutional. A mere 6 percent of Republicans and 21 percent of Independents agreed.

The poll question read, “As you may know, the Supreme Court will hear arguments next month concerning a requirement in the healthcare law that every American must buy health insurance or pay a fine. Regardless of whether you favor or oppose the law, do you think this requirement is constitutional or unconstitutional?”

“The individual mandate is clearly unconstitutional,” Northwestern University Law School Professor Stephen Presser told The Daily Caller. “All you have to do is read the Tenth Amendment, which says the powers not granted to the federal government are reserved to the states … and the founders meant that.”

The Obama administration touts the Patient Protection and Affordable Care Act of 2010 as one of its most significant achievements. That law, however, has yet to attract a groundswell of support from a majority of the American people. (RELATED: Full coverage of the health care law)

Additionally, 27 U.S. states have filed lawsuits against the federal government over the law, and a new battle is brewing over the so-called “contraception mandate” found in the bill. That provision threatens to force religious employers to provide health insurance that includes access to contraceptives and abortion-inducing medications that conflict with some faiths’ teachings.

A critical showdown for President Obama’s health care law will be a series of U.S. Supreme Court oral arguments beginning on March 26. Arguments will span across three days with the individual mandate set for discussion on day two.

Some experts remain unconvinced that the individual mandate is an example of the federal government overreaching its authority.

Southern Methodist University law professor Nathan Cortez said that because the health care industry makes up one-sixth of the U.S. economy, the U.S. Constitution’s so-called “commerce clause” gives the federal government the authority to enforce the individual mandate.

Cortez told TheDC on Tuesday that the commerce clause allows Congress to regulate not only obvious things, such as products sold across state lines, but activities that substantially affect interstate commerce — including modern healthcare — even if the activities themselves are local.

“There is not much debate that health care is truly a national problem, not a local one,” he explained. “The mandate is a good way to solve some of our systemic problems [by] creating a more coherent health care system.”

The commerce clause is one of the most widely used constitutional arguments in support of the Affordable Care Act, though Presser said it isn’t a very convincing one.

“The commerce clause does not in any way attempt to overrule the Tenth Amendment,” he told TheDC. “If the federal government starts mandating that we buy things, they begin to wield a sort of power that the Tenth Amendment can no longer keep in check. And absolute power leads to tyranny.”

The Gallup poll, consisting of a random sample of 1,040 people, also revealed that only 24 percent of all Americans — including 40 percent of Democrats and just 3 percent of Republicans — believe that the health care law would improve their families’ health care situations.

The poll had a margin of error of plus or minus four percentage points.

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Jason Howerton