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Issue Report: Constitutionality of US health insurance mandates

Are US health insurance mandates constitutional?

Background and context

A continual debate surrounding the Affordable Care Act has been whether requiring people to buy private health insurance is Constitutional. Since the passage of the legislation in March of 2010, many state governments, governors, and attorney generals have pressed forward with lawsuits centered on the idea that the individual mandate in the legislation is unconstitutional. Donald Trump took the same position during his 2016 Presidential campaign and in the early days of his administration. Opponents’ main argument is that requiring all individuals to buy private insurance violates individual freedoms to abstain from the purchase of any given private product, and that Congress does not have the authority to regulate and punish the decision to abstain. Supporters, however, contend that, in order to ensure the uninsured and lower the costs of health care, all individuals must be included in the risk pool. They argue, therefore, that Congress has a compelling interest under the Commerce Clause to mandate that all individuals buy insurance. These and other arguments in the debate are outlined below.

Mandates: Is requiring individual purchases of private products just?

There is no fundamental right to go without insurance

Mark Hall. "Is it unconstitutional to mandate health insurance?" August 25th, 2009

“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.”

People can choose to go without insurance; they'll just be fined

Jack M. Balkin. "The Constitutionality of the Individual Mandate for Health Insurance." New England Journal of Medicine. January 13th, 2010

“it is not actually a mandate. It is a tax, which people would not have to pay if they purchased health insurance. The House bill imposes a tax of 2.5% on adjusted gross income if a taxpayer is not part of a qualified health insurance program. The Senate bill imposes what is called an “excise tax” — a tax on transactions or events — or a “penalty tax” — a tax for failing to do something (e.g., filing your tax return promptly). The tax is levied for each month that an individual fails to pay premiums into a qualified health plan. […] Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment.”

"Mandates" do not require all citizens to buy insurance

Jack Balkin. "The Constitutionality of the Individual Mandate for Health Insurance." New England Journal of Medicine. January 13th, 2010

“The term “individual mandate” is misleading for two reasons. First, the law would not actually require all individuals to purchase insurance. The mandate would not apply to dependents, persons receiving Medicare or Medicaid, military families, persons living overseas, persons with religious objections, or persons who already get health insurance from their employers under a qualified plan.”

Insurance mandate unconstitutional only if imprisoning uninsured

David Orentlicher. "An Individual Mandate to Purchase Health Care Insurance Is Constitutional." Huffington Post. December 14, 2009

“there are no constitutional barriers to the kind of insurance mandate contemplated by Congress. To be sure, if Congress passed a law whose only provision entailed a mandate for individuals to purchase a product, and violators of the law were automatically subject to incarceration, constitutional concerns would arise.”

Federal mandates are common; no problem with insurance mandates

Ohio Attorney General Richard COrdray and Iowa's attorney general, Tom Miller. "Why we won't file states' rights suits." Politico. April 2nd, 2010

Congress “has ample power” to legislate under health care. “We live under mandates every day. Without them, society as we know it would disintegrate. We live under mandates every day. Without them, society as we know it would disintegrate. Every criminal law tells us what we cannot do. And sometimes the law tells us what we must do. Congress can require young Americans to register for the draft to serve in the military, for example, or can require us all to pay taxes for programs like Social Security and Medicare. We can — and do — argue about what shape these laws should take, without claiming that our leaders are constitutionally barred from dealing with our most pressing problems.”

Unconstitutional to require individuals to buy private insurance

David B. Rivkin Jr. and Lee A. Casey. "Illegal health reform." Washington Post. August 22, 2009

“But can Congress require every American to buy health insurance? In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.”

Penalizing a non-act (not buying insurance) is unconstitutional

Robert A. Levy and Michael F. Cannon. Bill 'Reforms' Constitution." CATO Institute. December 11, 2009

“‘Congress’ attempt to punish a non-act that harms no one is an intolerable affront to the Constitution, liberty, and personal autonomy. That shameful fact cannot be altered by calling it health-care reform.”

Mandates create cartel of govt-supported insurance companies

"Health Care Reform And The Constitution." PoliGazette. August 23rd, 2009

“it would for the first time involve the government setting up either a government monopoly or a government-selected cartel for which it would then use statutory power to require each and every citizen to become customers. The government would then have completely eliminated any pretense of individual market freedom, creating a situation where individuals would be required to contribute money out of each and every paycheck to either a government entity which would be staffed and/or controlled by political appointees or to a cartel made up of companies that would owe their continued existence on the cartel list to the continued acquiescence of political overseers. Either way, the reduction in individual autonomy and freedom over health care choices would be dramatically decreased and inevitably politicized. Companies that are good contributors to the party currently in power would be allowed to stay on the list so that consumers could still choose them. Companies that the party currently in power chooses to dislike would be excluded from the cartel and driven out of power.”

Individual mandates will be met by individual lawsuits

Peter Urbanowicz and Dennis G. Smith. "Constitutional implications of an 'individual mandate'" Federalist Society

“If an individual mandate is passed, it seems likely that courts will be faced with claims from individuals who can afford to purchase health insurance, but who will protest that they should be free to determine whether their earnings are best used for other purposes. Other people may protest they cannot afford to purchase coverage at a price that has been increased by federally-mandated benefits that they neither want nor would choose on their own.”

Enforcing mandates may intrude on Constitutional rights

Peter Urbanowicz and Dennis G. Smith. "Constitutional implications of an 'individual mandate'" Federalist Society

“The mechanisms of enforcement of an individual mandate would invite scrutiny as well. Sherry Glied, Ph.D., who was recently nominated by President Obama become Assistant Secretary for Planning and Evaluation at the U.S. Department of Health and Human Services has warned, ‘[d]eveloping a system to promptly identify and penalize scofflaws will take effort and ingenuity, particularly in our diverse and mobile country. It may require a degree of intrusiveness and bureaucracy that some will find unpalatable.’ […] Currently, individuals without auto insurance are identified during traffic stops by police or when applying for or renewing a driver’s license. Would such “effort, ingenuity, and intrusiveness” require hospitals and doctors to report to the federal government patients without health insurance presenting to their emergency rooms or offices? Or might it inspire enforcement mechanisms employed in child support cases such as the denial of certain government controlled licenses or withholding of tax refunds. As previously noted, the Senate HELP Committee draft bill suggests that insurance companies and employers would be required to file annually with the Internal Revenue Service the equivalent of a Form “W-4” or ‘1099’ and report to the IRS all individuals with health insurance.”

General welfare: Are mandates consistent with welfare powers of Congress?

Congress has power to level insurance mandates for general welfare

Democratic House Majority Leader Steny Hoyer said in November of 2009

“Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end. The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.” The words “general Welfare” show up in the first line of Article I, Section 8: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”

Constitution does not grant power for health insurance mandates

Larrey Anderson. "No health care in the Constitution." American Thinker. November 2, 2009

“The words ‘general Welfare’ show up in the first line of Article I, Section 8: ‘The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States … [Emphasis added.]’ Notice that the Constitution doesn’t say the ‘general welfare of the citizens of the United States.’ It says “general Welfare of the United States.’ This clause only gives the Congress the power to raise money to defend the country and pay for the day-to-day operations of the government. It says nothing at all about building bridges to nowhere, or paving bike paths, or spending money on any other kind of pork barrel project — including health care.”

Taxation powers: Does mandate fall under taxation powers?

Health insurance mandates fall under taxation powers

Mark Hall. "Is it unconstitutional to mandate health insurance?" August 25th, 2009

“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.”

Health insurance mandates incentivize behavior, like many other laws

David Orentlicher. "An Individual Mandate to Purchase Health Care Insurance Is Constitutional." Huffington Post. December 14, 2009

“At one time, the Supreme Court restricted the ability of Congress to use its taxing power to regulate people’s activities. In the early part of the 20th Century, the Court drew a distinction between taxes designed to raise revenue, which were permissible, and taxes designed to regulate behavior, which might not be permissible. But this distinction was jettisoned by 1937, and the taxing power is now recognized as a broad congressional power.”

Insurance mandates are no tax; outside of constitutional powers

Randy Barnett, a Georgetown University law professor, said health insurance mandates are not a tax, and therefore falls outside congressional power. “You’re fining people for failing to enter a private insurance contract.”

Health insurance mandates "take" private property

Peter Urbanowicz and Dennis G. Smith. "Constitutional implications of an 'individual mandate'" Federalist Society

“the question of whether the compelled purchase of health insurance constitutes the ‘taking’ of private property under the Fifth Amendment. Given the novel nature of the individual health insurance mandate, a Fifth Amendment challenge can be expected. Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances could be considered an arbitrary and capricious “taking” no matter how many hardship exemptions the federal government might dispense.”

Commerce clause: Are mandates constitutional under commerce clause?

Commerce clause gives power to mandate health insurance

Mark Hall. "Is it unconstitutional to mandate health insurance?" August 25th, 2009

“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.”

Uninsured effect interstate commerce by raising premiums

"Does an Individual Mandate Violate the Constitution?" Journal of Health Law and Policy. August 17, 2009

“the action of refusal actually has an effect on interstate commerce, because in shrinking the risk pool of insured the premiums would incrementally rise.”

Erwin Chemerinsky. The Federalist Society Online Debate Series: Individual Health Care Insurance Mandate Debate. November 3, 2009 November 6th, 2009

“the choice whether to purchase or not purchase health insurance is an economic decision and constitutes economic activity. If I decide to buy or not buy something, that is economic activity. Those not purchasing health insurance have a substantial effect on interstate commerce.”

Many attorneys general have fought constitutionality of mandates

Since the passage of the legislation in March of 2010, many state governments, governors, and attorney generals have pressed forward with lawsuits centered on the idea that the individual mandate in the legislation is unconstitutional.

Commerce clause does not authorize health insurance mandates

Congressional Research Service

“Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance. Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.”

Not buying insurance is no transaction; no commerce clause authority

David B. Rivkin. The Federalist Society Online Debate Series: Individual Health Care Insurance Mandate Debate. November 3, 2009 November 6th, 2009

“There is no doubt that Congress can regulate an entire array of economic activities, large and small, inter- and intra-state. Thus, for example, there is no problem, Constitution-wise with having Congress regulate health care insurance purchase transactions. The problem with an individual insurance purchase mandate, however, is that it does not regulate any transactions at all. It regulates human beings, simply because they exist, and orders them to engage in certain types of economic transactions.”

Congress can't regulate behavior indirectly impacting commerce

Erwin Chemerinsky. The Federalist Society Online Debate Series: Individual Health Care Insurance Mandate Debate. November 3, 2009 November 6th, 2009

“Professor Chemerinsky also overlooks the existence of two major cases – United States v. Lopez and United States v. Morrison – in which the Supreme Court, in 5 to 4 decisions, has specifically rejected the notion that Congress can regulate non-commercial behavior merely because, arguably, such behavior can have an impact on Commerce. The Court’s overarching reason for doing so was its compellingly articulated belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious. This reasoning is unassailable.”

State powers: Is a mandate consistent with separating fed and state powers?

Fed has power to institute necessary national insurance mandates

The only way that health insurance reform will work nationally, helping insure over 30 million uninsured and reducing premiums for every one, is if all Americans are required to buy insurance and be involved in a national risk pool. Because there is a compelling benefit to the “general welfare” to institute such a national program, the federal government does have Constitutional authority to impose a health insurance mandate. If the States were left to do this, with some instituting a mandate and some not, many would be left uninsured and the risk pool would not be adequately spread. The difference in benefits to the country clearly justifies federal action under the Constitution.

Health insurance mandates give too much power to fed over states

David B. Rivkin. The Federalist Society Online Debate Series: Individual Health Care Insurance Mandate Debate. November 3, 2009 November 6th, 2009

“the vertical separation of powers, under which the federal government possesses limited and enumerated powers, while the States wield general police powers, is the key part of our constitutional architecture. Far from being an 18th century affectation, these structural limitations on government powers were designed to protect individual liberty. In the Framers’ view, these structural limitations on the ability of the federal government to exercise authority were the primary ways of ensuring that no single government entity would grow too powerful. […] because, under the Supremacy Clause, any constitutional federal legislation trumps exercises of state power, an infinitely capacious Commerce Clause [ruling in favor of individual mandates] would rob States of any remaining authority.”

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