Earlier this week, a most excellent opinion piece was published by the Christian Science Monitor on the constitutionality of nationalized health-care: Must You Buy Health Insurance.
In making the case for her plan to mandate private health insurance, Clinton said in a recent Democratic debate that not doing so "would be as though Franklin Roosevelt said, 'Let's make Social Security voluntary,' or if President [Lyndon] Johnson said, 'Let's make Medicare voluntary.'"
In fact, under the law, there's a big difference between participation in a government health program funded by taxes and privatizing such a program, with individuals forced to purchase private health insurance.
Taxation involves representation, as when Congress appropriates money and controls a government program for the general welfare. This describes Social Security and Medicare. But government cannot simply delegate its taxing powers to private business.
What representation do we have in the insurance firms whose products we would be required to buy, at prices and terms they set? Can we vote out an insurer's board of directors for denying claims or paying its CEO a multimillion-dollar salary? Here, too, the Supreme Court has drawn a distinction between taxes imposed by government and mandatory fees set by entities with private interests.
A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine, or obtain treatment outside the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."
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