Is federally mandated burial insurance constitutional?


In recent article in the Huffington post, Leslie Gerwin laments the fact that the Solicitor General did not take the time during the Obamacare oral arguments to explain to the Supreme Court why Congress could mandate that individuals buy burial insurance. Strange as this topic may seem, it has roots in the Obamacare oral argument itself and in Gerwin’s radical view of congressional authority and therefore merits a response.

During the the Obamacare oral arguments, Justice Alito began to prod the Solicitor General for a limiting principle that could be applied to the government’s argument that would allow the Court to uphold the Affordable Care Act’s individual mandate without having to conclude that Congress could mandate that individuals buy whatever it pleased. In doing so, Alito asked whether the government could compel individuals to purchase burial insurance. The Solicitor General didn’t answer the question outright, but instead argued that burial insurance and health insurance are different.

That’s where Gerwin thinks that the Solicitor General went wrong. According, to Gerwin the government should have argued that it did have the authority to require burial insurance, because disposing of dead bodies imposes a real unavoidable public cost on all Americans– i.e. health and safety concerns require that bodies have to be disposed of at public cost if the families cannot afford it– and therefore, congress can force individuals to internalize this externality. In short, non-funded burials effect state coffers and therefore can be regulated by Congress.

In fairness, Gerwin’s argument does raise thought provoking questions as to whether burial insurance may be a good idea. But like most proponents of Obamacare, his concern over the Court’s perceived failure to see the virtue of such arguments reflects a severe misunderstanding of the role of the Court in our federal republic. Obamacare, like all other legislation, must stand or fall based not on whether it is prudent, but whether it is constitutional. Deciding the latter is wholly disconnected from the former. Great ideas can still be unconstitutional and terrible laws can fall well within the authority of Congress.

Under our constitutional system, the authority of Congress is limited to delegated powers. Issues involving health, safety, sanitation, etc have traditionally been reserved to the states under the Tenth Amendment. Adopting Gerwin’s view of Congressional power, under which anything that affects state budgets falls under the scope of federal authority, would radically reshape the relationships between the individual, the states, and the federal government, and render the expressly delegated powers of congress listed in Article 1 Section 8 of the Constitution meaningless surplusage. Indeed, because virtually any individual decision has some removed effect on fiscal matters, all activity could theoretically be regulated by Congress.

Like the Solicitor General, Gerwin has no adequate response to this critique and provides no constitutional justification for this radical overhaul of the federalist system. Instead we are left with  policy arguments for why Gerwin believes these regulations would be a good idea. Thankfully, such mandates do not become constitutional merely because Gerwin wishes that they were.