Uncategorized

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.

Livongo’s Post Ad Banner 728*90

Categories: Uncategorized

Tagged as: , ,

34
Leave a Reply

34 Comment threads
0 Thread replies
0 Followers
 
Most reacted comment
Hottest comment thread
27 Comment authors
Diana LeemrDarcyallouchsitHenry Massingaledoc Recent comment authors
newest oldest most voted
Diana Lee
Guest

I found this article very up-to-date and informative as it provides excellent tips to obtain the best possible long term care insurance rates and quotes. With this handy information, you are able to make your decisions more wisely and obtain the best long-term care insurance plan for yourself. It highlights the importance of having long term care insurance especially for the people above 65 years of age in helping them to plan for their long-term care needs.

mrDarcy
Guest
mrDarcy

Hmmm… You’re arguing the Constitution as a positive rights document designed to promote government as the provider, as opposed to it being a negative rights document designed to limit government’s influence over the people. This is the standard liberal/conservative divide with your promoting the liberal side. Regardless, you’re parsing words between “regulate” and “mandate” when it comes to the Commerce Clause (as well as the the General Welfare clause, if you want to advance that notion also). Both words have distinctly different meanings are should not be used interchangeably – that’s silly and dangerous. At day’s end, the government IS… Read more »

allouchsit
Guest
allouchsit

“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.”
If this were true, then Mr Hall must believe that Congress has the power to order every American to buy 5 lbs of hamburger each month because it has the power to regulate the beef industry. What a bunch of bull!

Henry Massingale
Guest

Some say that this Bill to Law is built inside the concept of Social Grace. This two word phrase Social Grace, was used with the building block and design of the Titanic. There was only enough Life Boats to save the rich and famous and the poor was left to die and this included the poor children. I am working as hard as I can to see all the Moral Value within this Bill. And I was right this Package of the Union of the Health Care Industry is a $100 Trillion Dollars per year system. The progressive tax forum… Read more »

doc
Guest
doc

this guy
will never have worry
about getting health care !
if he did he find that unconstitutional
screw the midclass
listen to REP
do not cry latter !!

Hildebrand, The Insurance Warden
Guest

Indeed it is unconstitutional. Constitutionally, the federal government’s powers are limited to those stipulated in the Constitution. Anything else is left to the discretion of the individual states and individual citizens. So what’s the federal government allowed to do? If memory serves, there’s coining money, governing interstate commerce, maintaining and deploying defense forces, taxing, and post. Sadly, the Constitution is only codified law, and that doesn’t stand up to precedent in our courts today (kind of a conflict of interest there). That means that a judicator can permanently detach the nation from its most definitive laws, even the Constitution.

JQ
Guest
JQ

THIS GUY IS AN IDIOT IT INFRINGES ON MY PERSONAL LIBERTIES, FORCING MY HAND INTO MY WALLET, AND IT INFRINGES ON STATE SOVEREIGNTY!!! ADDED NOTES ARE THAT IT ALSO SHIFTS FOCUS AWAY FROM THE ECONOMY/JOBS, IT IS A LOT OF MONEY ON AN ALREADY INCREDIBLY HUGE DEBT–WORSE THAN PREDECESSOR AND WORST IT’S BEEN SINCE LIKE FIFTY YEARS–VERY INAPPROPRIATE FOCUS, IT PERPETUATED “GO-IT-ALONE” ATTITUDED WHICH WILL HURT BIPARTISANSHIP FURTHER, IT WAS RUSHED THROUGH WITHOUT ANY CONSIDERATION FOR THEIR PEERS OR WHO THEY ALL ARE SUPPOSED TO REPRESENT TO CAREFULLY REACH THE RIGHT CONCLUSIONS, AND . . . IT DOESN’T ACTUALLY HELP… Read more »

FOWIF
Guest
FOWIF

Hi Mark:
Re: “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.”
So are you saying then that there is no fundamental right to be “INSURED”?
This is certainly a complicated matter but when in doubt I abide by one line of reasoning on most every political issue – “Government is not the answer”.

Lisa Lindell
Guest

Peter-Angelica, poor quality patient care is endemic, and not exclusive to the VA system, no matter how deep your pockets are. Fifteen million injuries per year occur to patients in the healthcare system, accoring to Dr. Don Berwick, President of the Institute for Healthcare Improvement. http://www.ihi.org.

Peter
Guest
Peter

“but our government is supposed to be a representative government not a ruling party.”
Vote them out then so you can get new representatives that will also pass laws that “mandate” you do or do not do something.

Tim
Guest
Tim

Forgive me if I seem to be jumping on the anti- socialist band wagon, but our government is supposed to be a representative government not a ruling party. A representative government is supposed to represent the wishes of the people not “MANDATE” that they do as they are told or pay the consequenses.

Peter
Guest
Peter

“For the first time I feel some comfort in my deceased WW2 veteran Grandfathers passing in that he doesn’t have to see what has happened to our country ( Constitution ) he fought for.” Tommy, would that be the grandfather who was on Medicare, and who used the GI Bill to advance his economic status? “BTW , my Grandfather died in a VA hospital because of inept medical practices…..I don’t think I need to expound on our government run VA hospital system. I personally took him for doctor visits there for a year as he was dying before my eyes… Read more »

ANGELICA
Guest

Hi
There are many ways to save money on health insurance. Most people know about the common ways, but many still may not ask their insurance company if they offer these discounts, get them applied to their policies to lower their rates, or think about switching to a company that offers more ways to save money on health insurance.
For further reading http://bit.ly/bgW7bx free health insurance quotes

Ryan
Guest
Ryan

In actuality, all powers not SPECIFICALLY granted by the constitution are reserved to the states or to the people. The Commerce Clause gives them the ability to regulate commerce yes, but what has happened here is not regulating, or even “mandating” for that matter. It is dictating, plain and simple. It is an order, pay a fine for disobeying(which means you pay for it anyway) or go to jail, you have no choice. I do agree that they could legally fund this whole program by raising income taxes like in your example, but like you said it just isn’t gonna… Read more »

Jennifer
Guest

Hello
I like this article as it is quite up to date and relevant.The information provided is quite good and seems to be very innovative in the sense that all factors has been out into consideration.
I also came recently across a site which was also depicted the same things regarding insurance needs and coverages
Check more at http://www.sandiego-health-insurance.info/