Is it Unconstitutional to Mandate Health Insurance?

By Mark Hall
In Proposed Legislation
August 25, 2009
84 Comments
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Mark A. Hall

Mark A. Hall

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 Hall
Professor of Law and Public Health
Wake Forest University School of Law

[UPDATE: 03/26/10 http://www.healthreformwatch.com/2010/03/26/are-the-attorneys-generals-constitutional-claims-bogus/]

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84 Responses to “Is it Unconstitutional to Mandate Health Insurance?”

  1. […] At least in laymen’s terms – and without diving headlong into all the legal justifications or implications – it appears relatively clear cut. The individual mandate was interpreted as a tax and therefore within Congressional powers to enact as legislation. Again, not a legal interpretation as much as a practical, pragmatic one. For the reasoned legal opinion there is perhaps none better than Mark A. Hall’s from August 2009 – Is It Unconstitutional To Mandate Health Insurance? […]

  2. […] At least in laymen’s terms – and without diving headlong into all the legal justifications or implications – it appears relatively clear cut. The individual mandate was interpreted as a tax and therefore within Congressional powers to enact as legislation. Again, not a legal interpretation as much as a practical, pragmatic one. For the reasoned legal opinion there is perhaps none better than Mark A. Hall’s from August 2009 – Is It Unconstitutional To Mandate Health Insurance? […]

  3. Patrick says:

    I posted my thoughts here on 10/16/2009 at 5:00 pm and I’m so anxious to hear what the SCOTUS has to say on this exact issue – the result expected next week.

  4. […] here Professor Hall’s prior articles in Health Reform Watch on the individual mandate : “Is it Unconstitutional to Mandate Health Insurance?” and “Are the Attorneys General’s Constitutional Claims […]

  5. […] analyst, Mark Hall, recently published an article titled “Is it Constitutional to Mandate Health Insurance? “ for the Seton Hall School of Law. Lest media talking heads or others brand the strong desire for […]

  6. […] mandate and the fight is almost certain to land at the U.S. Supreme Court. While most law scholars think the mandate is constitutional, the partisans on the Supreme Court could overturn the […]

  7. […] 1) “Is it Unconstitutional to Mandate Health Insurance? ,” which was originally published here on HRW by Professor Mark Hall and then later cited by the New York Times, Washington Post, etc. […]

  8. […] while conservatives will be using the tenth amendment to rail against the “unconstitutional” m…, I don’t think you’ll hear them blustering about how the federal legislation will […]

  9. […] 13.Is it Unconstitutional to Mandate Health Insurance? : HEALTH REFORM […] by desmoinesdem on the legal challenge to health reform. The piece reads: Law professor Mark Hall explains in detail here why constitutional arguments against an individual mandate to purchase health insurance are wrong. […]

  10. […] the commerce clause as Congress has ample Constutitional authority from Supreme Court precedent to regulate the national economy, and given that healthcare is now fully a quarter of our economy, Congress has the power to […]

  11. sharon says:

    What comes next after we all meekly join in and purchase this product, sometimes against our own wishes and beliefs? Where will the government ownership of our lives and liberties end? What if someone decides- I am minding my own business in my own home, Im not asking the government for healthcare- if I dont buy it I will be fined?- do i have to become an outlaw or fugitive because I dont want to purchase it? That is scary. I dont believe the government has the right to do that. There isnt any justification for it- it doesnt protect anybody or solve anything- it just takes a little more control of our own lives away from the people and gives government more ownership over us. It is a real violation of our civil rights. I hope we all come out in full force against this like the people in Arizona have done against their new law!

  12. vogsonefe says:

    Do you Care About this World? – Simple Question….How much do you care about people?

    Architect Beryl Zyskind is promoting world peace

    Have you ever been hungry, sad, hurt and in fear? Thank god your not a victim of the latest disasters in Haiti & Chile. Fact is, the orphans sleeping on the streets – and recently buried loved ones – require our assistance. I say “our” in reference to mankind.

    Accountant Beryl Zyskind is promoting world peace

  13. big daddy says:

    I would also add. On a bill this large, this legislation will not be ruled on in whole…it will be challengeed on different provisions within the bill. This individual mandate is merely one provision,there will be scores of constitutional challenges on provisions within this legislation.There will be battles won and lost.

  14. big daddy says:

    I think this reasoning in this article is well airy. The First question the supreme court will ask is this…Ok ,you say this is no different than a tax? then WHY did not the congress employ the constitutionally proven, timed tested way of levying a tax on payroll and other earnings income ? or the Tried and true method of placing a federal excise tax on Insurance policies ? The reason is self evident,there is no valid constitutional principle for the individual mandate.

    Even the Congressional Budget Office notes the peculiarity of this Individual mandate

    “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government”

    By the CBO’s own analysis there is “NO PRECEDENT” …this in its self puts this individual mandate at hazard from the smell test. Indeed it stinks.

    Given there is NO PRECEDENT,anyone who thinks they know how the supreme court will interpret and rule on this mandate is passing wind.There is only one thing that is certain in this matter…that this will in fact come before the supreme court, and the supreme court shall indeed rule on its constitutionality..and lastly,the Supreme Court takes its job and the constitution VERY VERY seriously.

  15. George Coolidge says:

    Says Professor Hall, ” . . . 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. ”

    Then, by the Professor’s construction, Congress can make us buy Chevys because they have the authority to regulate that Chevys must have seat belts. And it’s confirmed by the fact that there is no fundamental right to not own a Chevy.

    I suppose people should probably quit making this argument; with this group, we may all find ourselves driving Chevys.

  16. Cynthia Bell says:

    “In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat.”

    Well there is no fundamental right to be insured either…where is that written in?

    Cynthia

  17. […] [Ed. Note: Also Read Professor Hall’s prior post on Health Reform Watch, “Is it Unconstitutional to Mandate Health Insurance?”] […]

  18. […] are saying “not on our sovereign soil.”  Since the constitutional issues have already been hashed through so thoroughly, what’s new to talk […]

  19. Deb says:

    “It only requires them to have a means to pay for any treatment they might choose to receive”

    Insurance is not the only means in which to pay for services…have you forgotten that many have the financial means to pay for services received without the need for insurance? Having the means, and mandating the only acceptable means, are not the same thing.

  20. Julius says:

    I’m not a lawyer or anything, so I am not as versed as some of the posters here. I haven’t read most of the posts here (just too many of them) but what I have read has mostly been civil.
    I have a question. I don’t know if it’s been answered already.
    If the courts rule against a provision (or provisions) of the entire HC bill, is the entire HC bill invalidated or just the provisions invalidated?
    A friend brought this up. I thought it was just the affected provisions, but he thought it was the entire bill because of the reconciliation process.

  21. WalkingHorse says:

    Fascinating. Those of you holding forth on the various competing precedents and reinterpretations of the Constitution are laying open for all to see how several generations of lawyers torturing the plain language of the Constitution for grounds to accomplish some immediate end have cooperated to functionally eviscerate the Constitution. If Congress can command an individual citizen to enter into a contract against his will with another private entity, there are no practical limits to what Congress can do to the citizenry. So, many of you would now have us believe up is down, inside is outside, slavery is freedom. Congress can do any damned thing it wishes, turning the philosophical underpinnings of our former Republic upside down. Pardon my quaint outburst, but a pox on all your houses.

    “On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” — Thomas Jefferson

  22. Graig says:

    Just a further note.
    There are some absolutely brilliant people in this discussion. Reading my post, you know who you are.
    It is an honor to be in the same discussion with you.
    Thanks you.

  23. Graig says:

    Do I not have unlimited freedom to contract?
    How can I be forced to establish a contract with any entity without knowingly, voluntarily, and intentionally entering into it?
    Tell me that purchasing insurance anywhere is not a contract? How can I be forced into a that contract without nullifying the contract to begin with.
    How can I be regulated as an individual for sitting here and doing nothing since I did not choose to contract with anyone?

    The Constitution is not a permissive document. It is a restrictive document. It says to the federal government, which it created, you may do this and only this. You may not assume anything apart from this.

    “”It is the peculiar value of a written constitution that it places in unchanging form limitations upon the legislation and thus gives a permanence and stability to popular government which otherwise would be lacking.” Muller v. Oregon, 208 U.S. 412.”

    “”The basic purpose of a written constitution has a twofold aspect, first the securing to the people of certain unchangeable rights and remedies, and second, the curtailment of unrestricted governmental activity within certain defined fields.” DuPont v. DuPont, Sup. 32 Ded. Ch. 413; 85 A 2d 724.”

    “”All laws which are repugnant to the Constitution, are null and void.” Chief Justice Marshall, Marbury v. Madison, 5, U.S. (Cranch) 137, 174,176″

    A declaration by any branch of the government does not necessarily make it law. It must agree with the Constitution.

    “”If the legislature clearly misinterprets a constitutional provision, the frequent repetition of the wrong will not create a right.” Amos v. Mosley, 74 Fla. 555; 77 So. 619.”

    Explain to me where there is individual [emphasis on the world individual] liberty and freedom in this mandate?

  24. M. Andsky says:

    I don’t see how you can get around the Commerce Clause here. The courts have stretched it to an extraordinary length, but I doubt if the Supreme Court could agree that someone not engaged in any commerce, sitting quietly in his house, can be reached under this clause. Also there is no way to argue that such an individual could be involved in commerce in any way ex: he dies of a coronary embolism at home in his small town and is buried by the local undertaker.

  25. […] back-up for the constitutionality of the new healthcare law here, here, here, here, here, here, here, and from healthcare superwonk Ezra Klein […]

  26. […] According to an article on the site Health Reform Watch, the challenges to the constitutionality of the universal mandate may be based on first, the theory that Congress is over-reaching its power under the Commerce Clause of the Constitution in requiring citizens to purchase a product and second, that the mandate violates the individual liberties of citizens as set out in the Bill of Rights. […]

  27. […] by desmoinesdem on the legal challenge to health reform. The piece reads: Law professor Mark Hall explains in detail here why constitutional arguments against an individual mandate to purchase health insurance are wrong. […]

  28. […] at Slate has a more layman’s rundown of the debate and for the legal scholars out there Wake Forest Law Professor Mark Hall has a more in-depth read on the issues at […]

  29. […] Is it Unconstitutional to Mandate Health Insurance? (Health Reform Watch) […]

  30. […] Cato Institute has a good, if predictable analysis.  There is a decent defense of the Democrats’ plan from a law professor at Wake […]

  31. John M says:

    “Having said all that, I find it surprising that your belief in unfettered capitalism has survived the current economic crisis. The credit default swap/ collateralized mortgage securities debacle– you reference “criminal bankers” and yet you seem to believe if pure profit motive were left untouched by the regulatory hand of the government— that this would be “the best solution.”

    We haven’t been in a capitalist system in this country in a long time. Yes it exists, but all the abuses that caused the economic collapse is from corporatism. Corporations and government in bed together equals corruption and failure. Had capitalism been in full effect before and especially during the collapse it never would have happened, and even if allowed to exist naturally after the bubble burst would have corrected the problem.

    Capitalism in America? It really isn’t here fully. The funny thing is the health care bill will do nothing to address corporatism… Thanks Washington.

  32. Keker says:

    Your wrong friend! I was a federal judge for 17 years and not even a day one law school student would by this joke. I know the insurance industry has retained through a lot of money but this defense is malpractice. I guess I will run for president have my brother start a car company and require everyone to buy one!

    No your red herring argument is not valid. This is hameful disinformation.

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