Comment & Debate
Jack M. Balkin. “The Constitutionality of the Individual Mandate for Health Insurance.” New England Journal of Medicine. January 13th, 2010: “The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country.1 This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally.”
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.”
Hall MA. O’Neill. “The Constitutionality of Mandates to Purchase Health Insurance.” Institute for National and Global Health Law, Georgetown Law. Robert Wood Johnson Foundation. February 2009: “The Constitution permits Congress to legislate a health insurance mandate. Congress can impose a tax on those that do not purchase insurance, or provide tax benefits to those that do purchase insurance.”