Is it Unconstitutional to Mandate Health Insurance?

Filed in Proposed Legislation by on 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]

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  1. 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.

  2. 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!

  3. 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

  4. 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.

  5. 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.

  6. 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.

  7. 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?


  8. 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.

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