Is it Unconstitutional to Mandate Health Insurance?

Is it Unconstitutional to Mandate Health Insurance?

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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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73 Comments on "Is it Unconstitutional to Mandate Health Insurance?"


Guest
Abby
Dec 14, 2009

It may not be unconstitutional, but I’d be much more comfortable being taxed to provide health care rather than being told, as a condition of living, that I ha to pay money to a private insurer.
This doesn’t stop me from wanting a bill passed. Indeed, I worked hard to get reform enacted in Massachusetts.

Guest
MD as HELL
Dec 14, 2009

It is totally unconstitutional for congress to inflict health care on anyone.

Guest
MD as HELL
Dec 14, 2009

It was never constitutional for Social Security to be imposed.

Guest
Margalit Gur-Arie
Dec 14, 2009

I apologize in advance if this makes no sense. I am not an attorney.
From an individual rights point of view, the issue I am seeing here is that the mandate to purchase health care insurance does not have a specific, fixed amount, or relative to income amount, associated with it. I am not aware of anything in the proposed legislation that attaches price ceilings to premiums and/or various treatments.
In effect, the individual is mandated to pay to a private entity whatever that entity chooses to demand. I don’t know exactly where the constitution comes in here, but isn’t that a license for plain and simple robbery?
I do understand all about free markets and competition and anti trust laws, but so far all this machinery has failed to differentiate insurance prices by any significant amount.
I can easily see a large number of people being driven to near destitution and certainly suffering severe hardship due to the lack of limits on insurance fees.
The case of Robert Kras quoted as indicative that “substantive due process does not reach these situations” states that the pauper petition has been abolished in favor of fixed fees. We don’t have fixed fees here, is that case still relevant?
I also don’t quite understand how we use taxation laws to circumvent the “head tax or poll tax” issue. How do we tax (or credit) people if there is no algorithmic way to figure out the cost of insurance?
Sigh….. This could be so much simpler…….

Guest
Dec 14, 2009

It’s a stupid tragedy that we have to live off a 234 year old dead tree, instead of what actually makes sense.

Guest
MD as HELL
Dec 14, 2009

The fuller account is full of twisted and inane assertions such as there is no fundamental right to be uninsured. Are you nuts?

Guest
Margalit Gur-Arie
Dec 15, 2009

Matt,
The dead tree is a work of genius and I would be glad to live by it. The interpretation of the old tree and the legislation created by Congress, whom the old tree empowers to do just that, is the problem here.
With all the carefully selected checks and balances, the failure to impose term limits on the legislative branch has created a modern definition of tyranny perpetrated by career politicians and fully funded by big corporations.
At the very least the prohibition of acceptance of “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State” should be expanded to include lobbyists. Sadly, the constitution does not provide any recourse for the people other than Jefferson’s pet “little rebellion now and then”.
In my humble opinion, the current state of affairs in Washington and the way laws are enacted and business transacted, is an infringement on the most basic constitutional intent: promotion of the general Welfare.

Guest
Rob N
Dec 15, 2009

“It only requires them to have a means to pay for any treatment they might choose to receive.”
This is exactly why it is unconstitutional. It requires a citizen to have money, for no reason except your birth. If you don’t have money, and spend it on what Congress says, you will be thrown in jail or fined (fined?!). Do you have a fundamental right not to have money? Yes, you do.

Guest
Peter
Dec 15, 2009

“I worked hard to get reform enacted in Massachusetts.”
How’s that work’n for ya? Got subsidy”

Guest
Dec 15, 2009

Article I, Sec. 8 of the Constitution lists the categories where Congress can spend money. If a program is not there, no money can be spent. Period. There is no category there for spending money on the enforcement of a health care mandate. Thus, such a proposal is unConstitutional. Hall’s article has reminded me to, again, thank God that I never went to college!
John Lofton, Editor, TheAmericanView.com
Communications Director, Institute on the Constitution
Recovering Republican
JLof@aol.com

Guest
Dec 15, 2009

What MA has isn’t HC reform, it’s mandated health insurance. It didn’t improve quality or lower costs.
“there is no fundamental right to be uninsured”
Of course there is. This is still a free country. We don’t have debtors prisons. At least not yet.

Guest
Scott Selbe
Dec 15, 2009

Citziens should have the right to refuse insurance. Conversely hospitals, doctors and emergecy rooms should have the right to refuse treatment for those who have refused coverage and then later show up expecting to be treated for a serious illness or injury without the means to pay.

Guest
Abby
Dec 15, 2009

LL– I most definitely do not advocate the expansion of the MA model to the national stage. It was a compromise, but there were things that MA really couldn’t change because of ERISA pre-emption that the Federal government could if it wanted to.
The advocates were primarily focused on expanding coverage, and a lot of people got subsidized insurance. The original proposal had been to expand Medicaid eligibility an raise reimbursement levels to Medicare rates, but that didn’t happen.
Of course, we need real health care, as opposed to just insurance, reform too. The state is starting –just barely, with massive opposition from the hospitals over capitation –to tackle this too.

Guest
MarkS
Dec 16, 2009

I don’t like the option of being forced to buy insurance from a private company (but I have no idea whether or not this is constitutional).
I would much rather that the government paid for health care for everyone and did this by taxing everyone. I believe that taxes are constitutional and spending taxes on health care is constitutional (ie Medicare). Everyone would have to pay tax (but no one is forced to receive health care). Whatever happened to ‘Medicare for all’?

Guest
The old tree represents a lot of thinking over a lot of years.
Dec 16, 2009

“It’s a stupid tragedy that we have to live off a 234 year old dead tree, instead of what actually makes sense. Posted by: Matthew Holt | Dec 14, 2009 11:17:58 PM”
Wow. How arrogant is that? Maybe you should just be dictator since you seem to know whats best for all of us.