Mark-a-hall-150x150 Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. See here and here and here. Their reasoning is unconvincing and deeply flawed. Since I’m writing in part for a non-legal audience, I’ll start with some basics and provide a lay explanation. (Go here for a fuller account).

Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.

Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights – the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”

Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.

Mark A. Hall, J.D., is the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law. He is one of the nation’s leading scholars in the areas of health care law and policy and medical and bioethics and a frequent contributor to Health Reform Watch. The author or editor of fifteen books, including Making Medical Spending Decisions (Oxford University Press), and Health Care Law and Ethics (Aspen), he is currently engaged in research in the areas of consumer-driven health care, doctor/patient trust, insurance regulation, and genetics. He has published scholarship in the law reviews at Berkeley, Chicago, Duke, Michigan, Pennsylvania, and Stanford, and his articles have been reprinted in a dozen casebooks and anthologies.

Professor Hall also teaches in the MBA program at the Babcock School and is on the research faculty at Wake Forest’s Medical School. He regularly consults with government officials, foundations and think tanks about health care public policy issues, and was recently awarded the American Society of Law, Medicine and Ethics distinguished teaching award.

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72 Responses for “Is it Unconstitutional to Mandate Health Insurance?”

  1. JOSEPHINE LIPNICKY says:

    I will leave constitutional law to the experts.
    They have devoted years of study and research and
    surely the American public must know that the congress
    has thousands of lawyers checking the laws that are passed. Of course the health care reform is constitutional.
    The wire taps and evesdropping on phone conversations
    passed after 9-11 must have also been constitutional.
    I dont remember the left pushing that through.
    If memory serves me correctly, we became a debtor nation in the 1980′s when President Reagan and the democratic congress cut income taxes for the wealthy,
    taxed unemployment compensation for the 1st time in our
    nation, and taxed social security at 50% for those
    rich senior couples making a big $32,000 a year for the 1st time in our history. I laugh when the pundits say
    “we are going bankrupt” We are bankrupt. What would you
    call a debtor nation?

    • Jennifer says:

      Thanks, I ‘m a cosmetology instructor who makes $24K a year. I pay $1000 in insurance a year without Obamacare. I teach so I can get insurance (I’m in my 40s and things are starting to go wrong). Obamacare will triple what I pay in insurance, AND put me out of a job….because my new cosmetology students who make $5000 their first few years will be going to be but out of business before they begin. It’s already hard building a clientele. Every time I change cities, I will have to build a clientele again and try to live on $5000 a year BEFORE Obama tells me to pay $3000 per year in insurance. Guess what, it will get pushed back on the consumer….expect to triple you haircut and color prices.

  2. Vikram C says:

    To rational mind it should be clear enough that no one is being forced to go receive healthcare. It’s just that there is shortage of money so everyone has to buy insurance. And it’s not that its entirely sunk money.
    Plus on positive note, with economy looking up, hopefully government will be able to roll back tax breaks and repay some of the debt and get back to days of surplus. Hopefully all will comply in quest to pay off all debts.

  3. archon41 says:

    So…Let’s see…There is a “right” to health care, and a “right” not to be required to fund it?

  4. Raymond Nichols says:

    I am a citizen of Massahusetts. Let me get out of that way first and foremost. What I’ve seen here since this Health Tax, or Insurance mandate, whatever you would like to call it, is that this has become an embarassment to this government. What you see our elected officials tell you about what the majority of these citizens think, is pure BS. Let me tell you what has happened in my case.
    2007, the mandate goes into effect. For the first time ever, I am required to purchase my health option with the company I work for to provide coverage to my wife and myself. This runs about 245 monthly, totalling about 3,040 dollars taken out of my wallet. The actual estimate would be about 2300 dollars after taxes. This is 2300 dollars from just me that would have been spent into this states economy. Think about that as you debate the Health care reform that is on the table now, in a time when the economy is still down, we are going to mandate that you give billions of dollars to the health industry on a weekly basis? What will that do to the state of the economy?
    Anyways, back to the story. I had United Health Care. They were great, they paid a lot of a prescription my wife needed, and covered more then 75 percent of an expensive prescription I needed at one time.
    Now, December 2008 comes around, and I am notified in an effort to cut costs, my company will be switching health care companies from United Health Care to Aetna. This lowers my companies premiums they pay, but still my payment remains the same. Also those prescriptions I told you about for my wife? Aetna covered 2 dollars on a 65 dollar prescription. Their benefits didn’t cover anything, and they refused to pay the majority of any routine doctor visits. It was a nightmare, but a company I was forced to live with. It’s the law!
    Now, December 2009. SUDDENLY Mass notifies the company I work for that the health insurance they provide doesn’t meet state minimum requirements and they would have to direct every single one of their employees in Mass to the Health Connector to set up insurance. Well, as an employee that is bad news. My company loves it tho, because now they have to pay absolutely zero dollars towards my health care. The state of Mass offered me 13 plans, the cheapest being 413 dollars a month! that’s about 95 dollars a week, or roughly 5000 dollars a year. That is just under double my previous payment. My Annual Deductible is set at 4,000 dollars! Talk about a grinch. This means that if I go to the ER, or a DRs Visit. I have to pay the full amount until it reaches 4,000 dollars before my 25 copay, or 150 ER copay kicks in. That means I’m in it for 9,000 dollars before any coverage occurs. This is a sticks and bones policy, and just outright stealing. The worse part about it is that Mass holds you down, while the health companies take the money. How is this legal? It isn’t and sounds a lot like Involuntary Servtitude. Something similar happened in Mass a long time ago, anyone every hear of the Boston Tea Party? Of course I did not sign up for the Health Insurace they offered, so I saved myself atleast 5,000 dollars. I’ll establish my own little health fund on the side, and in the event something happens, I’ll deal with it then, and do what most people do. Make payment plans to pay it off. Over my lifetime, this will save me a lot of money, and puts me in total control of my own health.
    Now, I’m not against them trying to regulate Health Insurance, but they are doing it in such away right now, that it gives partial control of the government to a billion dollar private industry. It also allows for more corruption to take place, as their are no mentions of caps they can charge to a consumer. How is it that a premium of a 27 year old in one state, is so drastic in another? The answer is because in those other states, it isn’t against the law to not have Health Insurance.
    This Health Reform bill that will not get passed by the voters, has no mention of a cap. This will corrupt the white house and this country in such a way, that the response could be Unmeasurable. We are talking about forcing billions of dollars, weekly, not yearly, Weekly out of the economy and into the Private health insurance corporations. Think about it, everyone with a full time job will pay atleast 60 bucks with an employer sponsered plan, and over 120 with no employer help. This would be disastorous for this nation. It isn’t universal Health care.
    Sorry for the long rant, but I just can’t see this happening all over the USA, and wish it never occured in Massachusetts.

  5. Vikram C says:

    Raymond,
    It’s good that Mass intervened pulled you out from the bogus insurance plan. The disadvantage is that everyone feels pinched because while you are healthy the bogus insurance plan does feel like great value. In fact in senate bill has classified plans and set standards.
    Now to the actual price you are incurring. First of all there is one forcing employer to offer insurance of any kind. However they know it will be more difficult to attract employees without health insurance.
    Yes your deductible and premium are pretty high. But take heart that residents of Tx and NJ have it even worse and also that you reach 4000 straight after spending 4000. In many other places it will be after spending copay.
    I agree that it feels so uninsured with high deductible plans. Essentially if you look back and analyze the whole sequence the key issue is that your company cut your wages. They might have been spending about $7K pre-tax money on your insurance originally. Now you have to spend that money post-tax from your pocket. The cost of healthcare hasn’t changed. Just that you have been moved to a disadvantaged group.
    I am sure you would be looking to change employer. And it’s a pretty tough deal finding employees without oferring health insurance. Thanks your stars that govt stops them from offering good for nothing bogus plans. At least you are protected from catastrophic expenditures.

  6. CWH MS says:

    I don’t know whether the senate bill is unconstitutional, but the majority of the American people don’t like it. Perhaps because it is dangerous and unfair. One of the problems with the the bill is the language regarding the Medical Advisory Board (this is yet another fight for another day). Reid has written the language in such a way that this board, (which is unelected and unaccountable) cannot be easily undone by a future congress if they overreach or ration unfairly. The other thing that bothers me is the preferential treatment in certain states.

  7. Anne says:

    “The entire problem here is that we keep talking about health care in the context of insurance. Health care is a service. People should pay taxes and the government should see to it that the service is provided as needed.
    Forcing people to buy insurance is dumb. Forcing people to pay for social services is what we do every day.” -Margalit Gur-Arie
    You have it right. The Untied States spend heads and shoulders above any other country in health care expense, yet we continue to trial in basic human health indicators, such as infant mortality. We cannot afford to keep doing what we are doing.
    I can name you several people that I know and care about that have been bancrupt by medical proceedures they had to have to live, yet had no insurance. I know of one dear friend who is currently waiting while malignant tumors grow in abdomen but is unable get the surgery she needs. She is waiting a “lottery” by the hosiptal that might award her a portion of the thousands of dollars the treatment will cost. Either way, financial ruin and poverty is all she can look forward too. These are hard working entrepenuers and contracted workers – small business owners and hair stylists, cab drivers, etc, that work HARD every day, yet cant afford $500 + a month for decent health insurance, or bought less costly plans that deny them their treatments. THis is a sick sick state of affairs. If I do not pay taxes to this county for vital SERVICES – liek education, health care (not insurance, but care), Fire and safety service, what the hell are we paying taxes for? I would rather pay an extra $50 a month out of my paycheck for national health care (and I don’t make tht much) if I knew tht i can walk into my local clinic or hospital and receive the vital health care and treatment me and my family might ever need. How can we afford NOT to nationalize our health care? The human cost is so tangible, i see it and know it every day. how can we not DO something about this?
    The current plan is ALL WRONG. Forcing people to buy insurance will have the same effect mandatory car insurance had – cheap bear bones plans that hardly cover anything just so low income people can meet the requirement, but don’t actually reap much benefit or protection from. Talk about wasting money. AND those that can’t afford car insurance, can opt not to drive their car. I guess those that can’t afford health insurance can opt not to live?!?

  8. Mike Clark says:

    Interesting topic. If this does come to pass, clearly there will be loopholes in the tax law, that’s what those 42,000 pages of tax code are all about, isn’t it? (or how many pages is it now?) Ronald Reagan used to talk about he “underground economy”, which really describes the cash-for-goods-and-services, under-the-table, untaxable, basic economy that exists over most of the world — sidewalk markets from China to Latin America to Africa, plus maids and servants many places in the “primer mundo” as well, not to mention day-laborers hanging out in the Home Depot parking lot or your average inner-city street corner drug dealer.
    I was part of the underground economy for many years, and now I have been above the table for a long time, but still self-employed. The numbers of marginally self-employed people like myself are a big unknown factor. Under the radar, off the books, missing from the statistics, they may never collect unemployment insurance or go on welfare, neither do they file taxes or borrow money. They simply cannot afford health insurance, and a lot of them are virtually unemployable due to age, lack of education, illness, alcoholism, and yes, attitude.
    I can’t see mandatory health insurance laws actually being enforced against this large sector of the population — there are just too many people who couldn’t possibly comply.

  9. Vikram C says:

    Anne- Senate plan has provision for insurance plan standards and certain basics have to be covered.
    It might make plan suddenly appear unaffordable but that’s better than a cheap junk.

  10. Nate says:

    Anne,
    it is impossible to fund what you are asking for with $50. The quesiton is are you willing to pay $600 a month in taxes for the same coverage you could get with a $500 a month policy now? That is the choice you are presented with.

  11. QC Kitchen says:

    Mr Hall states “a mandate is just a stronger form of regulation”. This statement is pure misdirection. Congress regulates commerce on the production side. It does so for the benefit of the consumer. Industry is regulated in the what, when, and how it can provide a service. It does not regulate the individuals buying the service. What could be mandated is that Health Insurers must provide a plan that meets a criteria, not that it must be purchased.

  12. Margaret says:

    I’d like to know how it can be constitutional to force individuals who do not have tax free benefits purchase their own insurance with after tax dollars. It seems to me that you either have to tax the bnefits or grant an across the board exemption to all self-payers.
    I don’t think a mandate that discriminates against self-payers way will stand up in court.

  13. Health care worker says:

    If you own a car, you have responsibility of buying insurance, so if you care about your health, it is your responsibility to health care insurance. I do not think mandating health care insurance is a solution provided government cannot provide any affordable health care insurance solutions. Having said that, it is important to acknowledge the fact that a lot of people end up in ER without insurance. I think making insurance affordable and mandatory will help in focusing on preventative medicine rather than reactive approach.

  14. Kevin says:

    My understanding is that under the Constitution, Congress is not authorized to forbid someone from NOT MAKING a commercial transaction, in this case, health insurance. If Congress can force people to make particular purchases, then there was no need for the government program Cash for Clunkers. Instead, Congress could have just ordered people to buy cars.

  15. RPM says:

    Mock & Tolin: The Constitutionality of the Health Insurance Tax
    Rodney P. Mock & Jeffrey Tolin (California Polytechnic State University, San Luis Obispo — Orfalea College of Business) have posted Purchase or Else: The Health Insurance “Tax”, 126 Tax Notes 224 (Jan. 11, 2010), on SSRN. Here is the abstract:
    With the Affordable Health Care for America Act, H.R. 3962, passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”

  16. davidbaer says:

    What I like about small business owners is that they are not afraid to take huge risks and lay it all on the line. But, I agree they do need a lot of help with their marketing. I think having them go the social media and email route is not only the least expensive but its also the most effective. Thanks for the stats!
    With Facebook and Twitter being among the leaders of the Social networks, marketing as a small business is being transformed..
    Respondents according to the Vertical Response survey appear to need some differentiation with the use of SE marketing and Social media Marketing
    http://www.onlineuniversalwork.com

  17. davidbaer says:

    What I like about small business owners is that they are not afraid to take huge risks and lay it all on the line. But, I agree they do need a lot of help with their marketing. I think having them go the social media and email route is not only the least expensive but its also the most effective. Thanks for the stats!
    With Facebook and Twitter being among the leaders of the Social networks, marketing as a small business is being transformed..
    Respondents according to the Vertical Response survey appear to need some differentiation with the use of SE marketing and Social media Marketing
    http://www.onlineuniversalwork.com

  18. back pain says:

    well what to say about all. really we are surprised now. as you gave a simple explanation which shows that our thinking was wrong,some times peoples also think like conservative lawyers.but now we are well aware with all the required information.Thanks.

  19. Ric says:

    Sorry Mark Hall, but your reasong is flawed. I’m not a lawyer and I can see you get it wrong. Leave to a lawyer to twist the English language to give the government authority it does not have. The “commerce clause” does not give the federal government the authority to order citizens to engage in a commercial transaction for any reason. Maybe states can, but the federal government can’t. If the federal government has the authority to order you to buy health insurance because failure to do so would impact interstate commerce, then why doesn’t the federal government order us to by cars made by GM to bail that company out and save the economy. It’s a simple matter of individual liberty which the federal government cannot interfere with. By telling us we have to buy insurance, and what the minimum level of insurance has to be, and to report that information to the IRS, crosses the line and exceeds the authority the founding fathers gave the goverment through the “commerce clause.” Not twisting by you of the English language will convinve me otherwise. Good luck selling it to the Supreme Court.

  20. Ric says:

    Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights – the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law.////And on that Mark, we live in a Republic, not a fascist or communist state where the government tells us how to spend our money. Can’t believe you can make the arguement it can.

  21. Ed says:

    Dear Mr. Hall.
    I commend you on giving the other side to this debate and giving readers a chance to do their own research. This type o journalism is so lacking in the internet age where personal opinion blogs reek of agenda.
    That being said must say I’m disturbed by your cavalier attitude towards individual rights. You seem to cast them aside as if it’s nonsense to consider that the rights of the individual could possibly outweigh the governments agenda, the whole time seemingly ignorant to the fact THAT IS WHAT THE CONSTITUTION IS FOR! To keep government in check and protect individual rights. You’re arguments for such government power over the people are unconvincing. If we are to believe your opinion than government is without limit to arbitrarily mandate anything and everything. Again, I thank you for the opposing viewpoints (links). I find them much more convincing and plausible and following the spirit in which the Constitution was written.

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