OP-ED

Is it Unconstitutional to Mandate Health Insurance?

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 replies »

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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

  8. 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

  9. 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.”

  10. 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.

  11. 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.

  12. 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. 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.

  14. 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.

  15. 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.

  16. 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.

  17. “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?!?

  18. 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.

  19. 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.

  20. 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.

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

  22. 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.

  23. 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?

  24. I suggest everybody read “FDR’s Folly’s”. All of the modern welfare state is a result of the abuse by FDR & the Congress in the Great Depression of the “General Welfare” clause of the Constitution. (Where it may have been excusable at the time due to lack of knowledge, but mostly not.) Certainly this bit of “dead tree” would not allow patently absurd spending to bribe a Senator to vote for something for one state that disadvantages all others? And force me to consume a product (health insurance) I don’t want because the gov’t says so? What next? Milk consumption quotas to help dairy farmers? Please read the Constitution.

  25. Vikram you must be reading a different constitution cause the one I read is full of personal responsbility including that to defend the constitution and republic. SOmething the left has been chipping away at for generations. When 51% of the country is living off the other half personal responsibility has obviously died.

  26. It is as much constitutional as right to get service in emergency room.
    Anyway constitution is light on responsibilities and high on rights. Hence such great fuss when it appears that rights appear to be going away.
    The spirit of healthcare reform is compassion for the sick and dying. Compassion doesn’t find a place in the constitution. Yet it’s the greatest innate humane quality and it’s within our internal constitution.

  27. Nate, the argument made above was that goods or services cannot be constitutional rights. Turns out that in the case of criminal prosecution, they are. Therefore that argument is invalid, and there is really no precedent standing in the way of making medical care a constitutional right, if and only if, the people wish to do that. It is a philosophical argument by and large.

  28. Individual liberty issues aside, Hall’s article fails from the start in his glossing over the issue of Congressional power. He argues that a “mandate” is simply a stronger form of regulation. However, Congress was delegated the authority to regulate commerce. This means that when transactions occur between two more people, Congress may set rules regarding their nature. Does this mean that Congress may force these transactions to occur in the first place? Some of these 30 million uninsured Americans have chosen not to participate in their employer’s health care offerings because they are young and healthy and it simply does not make sense for them to participate. Commerce must exist first in order for Congress to regulate it. It does not have the authority to enforce the creation of commercial activities (and then proceed to regulate them). Ultimately, Hall and other liberals cannot use the Commerce Clause as a defense for any government policy. The history of the interpretation of the Commerce Clause shows that at times it can be used to uphold government interference in the economy. At other times, however, the clause cannot be used as a shield to rationalize away every action taken by Congress, especially the ones completely irrelevant to commerce. Mandating individuals to participate in this new “government-sponsored free market exchange”(oxymoron aside)is clearly unconstitutional and taxing the individual for failure to do so is simply an encroachment on the basic liberty this nation was founded upon. Our forefathers would be ashamed.

  29. margalit your confusing what the constituion says and more recent criminal law. Civil matters you are not guaranteed representation. Tax court and traffic court you are not provided councel. In all cases by law your allowed to obtain your own but only in the narrow band of criminal cases are you provided an attorney.
    If someone sues me for a million and I can’t afford an attorney I’m on my own.

  30. Nate, you are misunderstanding the law. No matter how heinous your crime is, you have a right to counsel, which means the government must provide an attorney for you, free of charge, if you so desire. They cannot put you on trial otherwise.
    And yes the office of the Public Defender can force its employed attorneys to defend disgusting criminals as part of their job (they can resign). BTW, people are innocent until they are proven guilty and most public defenders will not recoil from anything. They are there because they believe in what they do and get paid very little for their trouble.
    You are not forced to use an attorney and you most definitely may go and hire your own instead. The point is that the Constitution gives every American a right to a service (attorney) which can be bought on the open market.
    Therefore, I don’t see any philosophical impediment to amending the constitution to give all Americans the right to Medical Care.
    This is not the same as a mandate to buy insurance, or buy medical care, or buy counsel services, which is more than likely unconstitutional, in my opinion.

  31. It never ceases to amaze me how lawyers and other non clinicians know more about health care decisions and administrative needs than the people who acually are involved in the process. And yet nothing ever gets passed as legislation to change the way lawyers practice and monitor themselves. If there was or is an Antichrist-type character, it has to be a lawyer! Mandating anything for all citizens is only an intrusive, disruptive agenda, and any one who argues vehemently such mandate should be pursued has an ulterior motive, it always comes out. And to all you physicians who say and do nothing to aid and abet this legislation to become law, you are idiots and deserve to see your careers be destroyed. This Congress has no other agenda but benefitting themselves first, and all these arguments to say otherwise, none of them involve people who truly provide healthcare responsibly and ethically. Pathetic and disgusting! Signed by a physician practicing for 16 years and now looking for a new career!

  32. Margalit you have the right to counsel not a mandate to purchase the service. I am free to represent myself just as I should be free to treat and determine my own health. Nothing in the constituion requires an attorney to provide you service though. If you are a partucllary henious person it is conceivable no one would represent you.
    A right to medical care would mean someone is forced against their will to provide you that treatment. Abortion is an example, if no doctor or pharmacists wanted to provide one should the law force them to over their moral objections? If you think it does then where do you draw the line? Eugenics isn’t far down that slope.
    No one has a right to the goods or labor of another, period.

  33. RMichael, I was referring to your following argument:
    “A Good (and Service), on the other hand, can be bought and sold. This includes food, housing, MEDICAL CARE, and a lot of other things. Goods are not Rights. Rights are not Goods.”
    Counsel is a good (or a service) and obviously people can have rights to goods. Amending the constitution to bestow a right to medical care is not without precedence from the goods point of view.
    Forcing people to purchase insurance, as opposed to taxing and providing medical care on demand, is an entirely different story and I doubt that it can be proven constitutional.

  34. Interstate Commerce clause is a giant reach.
    Health Insurance is a State regulate industry. Making the argument that individuals that don’t wish to purchase health insurance ( have no desire to be in commerce) from companies that are intrastate animals is almost laughable.
    but pass the popcorn while I watch and chuckle.

  35. Margalit Gur-Arie, the 6th Amendment says there is a right to a speedy and public trial by an impartial jury, wherein the defendant is informed of the reason for the trial, to confront witnesses, “and to have the assistance of counsel for his defense.” It is unclear to me how this can be construed to link with any right to a good. The 6th Amendment is and was intended to have an impartial and open presentation of facts related to a purported crime or breech. This is not a good in the sense that one cannot buy a pound of speedy and impartial. It has to do with the structure and process of the legal system. Nor does this amendment force one to gain assistance of counsel. As we know, anyone can act as their own representative if they so desire. The only goods involved are that, for service, a counsel may charge a fee. So, to summarize, the right in this case is a structure and process for fair and open treatment for the accused (no back room or secret deals leading to imprisonment or fees without explanation). If this current Senate Bill passes and forces people, under penalty of law, to have healthcare insurance, then that is a whole different issue. It will actually take away our right to free will.

  36. On top of all THAT outrage, all the plans from which people can choose will be required to include so-called “wellness” programs. These are intended to tyrannically dictate the details of peoples’ personal lives, and are founded on six decades of deliberate and systematic scientific fraud, designed to falsely blame lifestyle for diseases that are really caused by infection. In plain English, they are bald-faced Nazi pseudo-science, and were literally concocted during the Third Reich.
    http://www.smokershistory.com

  37. RMichael, in view of your goods/rights theory, could you explain the difference between the right to health care and the sixth Amendment provision of the right “to have the Assistance of Counsel for his defence”? Other, of course, than the fact that we have not amended the constitution to grant the right to health care just yet.

  38. This is, perhaps, the worst legal “analysis” I have read in my 30 years of practicing law in the federal courts. It is obvious that Mr. Hall is paid to “teach” because he clearly knows nothing about actually practicing law.
    Mr. Hall claims that “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.” This is completely false. A mandate is NOT “just” a stronger form of regulation. A regulation controls or directs voluntary actions. It cannot mandate those actions from persons who choose not to be involved in such actions. In other words, those who choose not to engage in interstate commerce cannot be “regulated” to do so any more than those who choose not to drive a car can be “regulated” to drive a car.
    A much better explanation of the unconstitutionality of the individual mandate is found here http://www.heritage.org/research/legalissues/lm0049.cfm
    If Mr. Hall is an average example of those who now teach in our law schools, Heaven help our republic!! Clearly, Mr. Hall needs to go back to school and take a refresher course in constitutional law.

  39. You will get free healthcare in jail. In fact, jail is about the only place left in the whole country where you can be free.

  40. I’ll have a fun time in jail, because I’m not buying health insurance whether the government tells me to or not.
    Give me liberty or give me death. Washington can go to hell for all I care.

  41. A recent TV program covered the differences between a Right and a Good (goods and services). I believe it is worth repeating.
    A Right is something available by the grace of God or Society or the self, and includes things like the classics Life, Liberty, and the Pursuit of Happiness. You cannot buy or sell these things by going down to a local vendor and, say, buying a bushel of Liberty.
    A Good (and Service), on the other hand, can be bought and sold. This includes food, housing, MEDICAL CARE, and a lot of other things. Goods are not Rights. Rights are not Goods.
    Health care is not a Right. It is a Good (Service if you prefer). As such, Congress should stop considering it a Right. It is no more a Right than you and I having a “Right” to a certain type of food, certain clothes, a certain car, or a certain big home.

  42. Peter, do you really want to pay $12-$20k per year to a for-profit company so that I may have invitro-fertilization someday if I want? Is that your idea of shared risk? There’s nothing fair about this.
    I never said I hated insurance. The very idea of mandated health insurance is a farce. I don’t think this “reform” will ever see the light of day, not in its present form. We’re voting again in 2012.

  43. “Take it to the Supreme Court.”
    I’m almost certain that somebody eventually will.
    While taxing people in order to provide them with health care services should be constitutional, mandating the purchase of a loosely defined product from a private seller, regardless of significant hardship imposed, for a price to be set at the seller’s discretion, may not stand up to Supreme Court scrutiny.

  44. Whats wrong with mandating health insurance? Its for your safety only.
    We are already required by Law to buy driver’s insurance. You and I buy that, right? We never complain that.
    We NOT only understand the benefit of that but also want that everybody should buy that since its a right thing to do.
    Why only few should pay hefty insurance premium when others take it for granted and show up in hospitals without insurance ultimately shifting the burden to our shoulders.

  45. “I’ve argued that Congress is both without power to enact a mandate and that it’s affirmatively prohibited by the 13th Amendment.”
    Take it to the Supreme Court.

  46. Great post. I’ve argued that Congress is both without power to enact a mandate and that it’s affirmatively prohibited by the 13th Amendment. What is involuntary servitude, after all, but a requirement to toil for the benefit of a private party, and have that relationship enforced by the power of criminal law?

  47. Well if your point Lisa is that if you hate insurance that much then don’t participate in driving a car or owning a home, unfortunately you don’t get a choice when it comes to healthcare – you WILL need it and in large amounts sometime in your life.
    “In both cases where auto and/or homeowner’s insurance is mandatory, it’s required to protect a third party, not you.”
    Well the third party in healthcare is all the people who do buy (if they can afford to) insurance that have to pay increased rates because the hosptial is “forced” to treat you for free. Maybe you should carry a sign that says, “Just dump me on the street”.
    I will agree that being forced to buy health insurance at $13,000 per year is not even approaching what’s right, and I dropped insurance coverage myself, but I do agree in the concept of shared risk (or social solidarity) and for healthcare that means single-pay price-controlled government run paid for through taxes.

  48. I disagree with the suggestion that Congress has the right to force anyone to buy anything. Article 1, section 8 says Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes-” the intent of which was to prevent any state or group of states from exerting monopolistic powers over other states. In this sense, regulation can be looked at as fair treatment, not the mandating of all citizens in all states. While you may look at mandating as just a stronger form of regulation, this was not the intent of the signers of the Constitution. Furthermore, by weighing taxes differently for those with or without insurance, this also goes against the sense of fair and equal treatment of the population of citizens. Nowhere in the powers of Congress does it say they may arbitrarily pick one type of citizen over another to tax or otherwise penalize except for treason, crimes and misdemeanors. Perhaps we will see this in court (I hope we do if it passes), because there are states which have laws forbidding mandates such as these.

  49. 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.
    Forcing doctors to treat you for free is not an option either, unless they are all government employees and I’m pretty sure that’s not what you want. The real alternative is that you will get no treatment unless you have the money to pay in advance, or you can pay in chickens, like the good old days.

  50. Peter you miss the point entirely. People who want insurance, buy it. We’re forced to buy auto insurance if we own a car, you don’t have to own a car and auto insurance doesn’t cost ten to twenty percent of our income. You dont’ have to buy a home you can rent. In both cases where auto and/or homeowner’s insurance is mandatory, it’s required to protect a third party, not you. (IE: the mortgage company, ie: another person’s property that is damaged by your vehicle). We aren’t forced to spend up to a third of our income on either simply because we exist. Following this theory then the hospitals, doctors, etc should be FORCED to buy uninsured protection, in other words they have an insurance policy that pays when they treat a patient who doesn’t. Ha ha, there’s your mandatory insurance.

  51. “I have no doubt that when millions of young Americans realize they have absolutely nothing left to save, because they spent everything on Health Ins they didn’t need, or use that year,”
    You miss the point of insurance entirely – it’s shared risk. Do you buy house insurance even though you may not need it “that year”? Do you buy car insurance because you didn’t need it “that year”? And when those young Americans get old who will help them pay for their medical expenses?
    “Why can’t a public OPTION be created, that is OPTIONAL for people who want it,”
    Who are you going to force to be taxed to pay for it?

  52. ” but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.” … “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.”
    Yeah we should do away with those arahic “individual rights” They’re constantly getting in the way of us establishing a “Rule by Mob” society!
    What is constitutional is subject to who is sitting behind the bench!
    What keeps the Govt from forcing us to hand over ALL of our earnings for the so called “greater good”?
    The more of my earnings the Govt takes from me, the more opportunities and possibilities it takes, which impedes upon in my right to the pursuit of happiness.
    To be clear, your reasoning is that because they’ve found modern ways circumvent the articles that protect our right to the pursuit of happiness, it is just for them to continue to do so? The individuals right to innocence until proven guilty, in so many words, is NOT codified in the text of the Constitution, therefore, a skilled, modern law twisting lawyer like yourself, could defend a congressional decision to take that right away from us. Does that make it right or just? And is that the country you want to live in?
    I become more and more afraid everyday. The Constitution was intended to protect law abiding, good people, from being forced into things they don’t want, need, or believe in, by an over powerful Agency of Force!! It was intended to keep this country, from becoming anything like the forceful countries our Ancestors fled in search of opportunity and possibility. Those basic Articles and the Bill of Rights are still there intact! Wrong-headed Amendments, like the ones your referring to, have been repealed before, and as more and more people realize just how much power, we the people, have lost, I have faith more will go in the future. The Constitution DOES still in fact protect us from forced health ins.!
    >> “Health insurance is quintessentially an economic good.”
    Really? That also depends… Its good to force those of us perfectly healthy individuals, in our mid 20’s to 30’s, who’ve chosen to opt out of buying health care from our employers, in favor of saving our 5-7 grand a year to buy a homes to start families in, into living in little apartments for the rest of our lives?
    That is exactly what this does. My sister and her husband have managed to save $13,500 over the last two years. The plan is to save a down-payment to put toward buying a home, and purchase health ins after they’ve hit the $50,000 mark. But under the current FORCED Health Ins. plan, they’d no longer have anything to put toward saving for a home. Is that economically good??
    >> 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,”
    Why the need to force a any kind of health care ins plan on people? Why can’t a public OPTION be created, that is OPTIONAL for people who want it, but can’t afford it, or have been denied by other insurers? Is it possibly because it’s not being created out of an earnest desire to help anyone. It’s about political power.. It’s about creating another Govt program that forces an entire nation to become so dependent on an agency of force, they’ll live in fear that it will be taken away if they aren’t careful with their votes.
    When I was deciding which party to register with, I asked my late grandfather, a southern Democrat, why he supports his party. To my surprise, he said it was because “they created welfare and social programs for black people.” His gen of southern Dems believed the creation of those programs kept black man “in his proper place”. In his words “We give em just enough to shut em up, and feed their people, but not enough to rise above, so they become dependent, and live in fear that if they don’t keep us in power, it’ll be taken away.” – I became a Libertarian!
    This Forced Health Ins plans the same thing, only this time they’ve decided to force dependency on EVERONE. It’s sickening. But I do hope it does pass! I have no doubt that when millions of young Americans realize they have absolutely nothing left to save, because they spent everything on Health Ins they didn’t need, or use that year, that’ll be the end of this party forever. I also hope you keep writing articles, you help the Libertarian movement with every word!

  53. Of course it’s unconstitutional. What else would Congress pass that is “major” legislation except unconstitutional legislation? But Congress no longer cares what is constitutional as long as you don’t vote them out of office for doing it. The author of this article does not care either. Drunk on the power of what they can do (and claim they can do) instead of sober on the limitations of what they are permitted to do and prevented from doing; that is the problem with this author and Congress.

  54. @Mark —
    This logic is fatally flawed:
    “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.”
    Just because ‘regulatory provisions’ exist in the tax code, doesn’t make the provisions constitutional.
    There’s nothing to stop Congress from passing anything they want and the President from signing it into law even if the law exceeds Congress and the Executive’s authority.
    That’s why we have judicial review.

  55. “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.

  56. 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’?

  57. 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.

  58. 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.

  59. 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.

  60. 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

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

  62. “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.

  63. 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.

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

  65. 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…….

  66. 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.

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