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
Frank Lobb
Dec 20, 2014

Everyone is missing the key issue here. By mandating health insurance, the federal government has mandated managed-care insurance that strips individuals of their right to a personal and private doctor/patient relationship and to ACCESS care outside the interference of an insurance company, all without ANY notice, process or authorization. It’s as unconstitutional as you can get and that is why the insurer’s provider contracts are such a deep dark secret. See the book “Too Big to Be Legal – Your Mandated Health Insurance” on Amazon or Barnes & Noble for all the hard documented facts.

Guest
Ed
Mar 1, 2010

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.

Guest
Ric
Feb 25, 2010

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.

Guest
Ric
Feb 25, 2010

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.

Guest
Feb 22, 2010

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.

Guest
davidbaer
Jan 27, 2010

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

Guest
davidbaer
Jan 27, 2010

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

Guest
RPM
Jan 21, 2010

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.”

Guest
Jan 15, 2010

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.

Guest
Health care worker
Jan 14, 2010

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.

Guest
Margaret
Jan 10, 2010

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.

Guest
QC Kitchen
Jan 7, 2010

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.

Guest
Nate
Jan 5, 2010

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.

Guest
Vikram C
Jan 4, 2010

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.

Guest
Jan 3, 2010

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.