Tag Archives: constitutionality

Is the Individual Mandate Constitutional?

The most controversial provision of the Affordable Care Act  is undoubtedly the individual mandate–the requirement that almost everyone carry health insurance.

Why a mandate? As the LA times said, “A mandate is key for reducing the ranks of the uninsured, who often turn to emergency rooms for care, driving up everyone’s costs. Spreading the costs—among healthy and sick—is also the only way to make the reforms work.” Health economists agree–in order for this reform to work, it has to include the mandate. So—It’s necessary, but is it constitutional?

According to most constitutional scholars, yes. Here’s the analysis:

Congress has authority both to regulate commerce among the several states, and to “lay and collect taxes to provide for the general welfare.” The Senate bill requires that citizens purchase qualifying health coverage; if they don’t, they pay a tax penalty. Exemptions are granted for religious objections, financial hardship and a variety of other reasons. The House bill didn’t impose a “mandate” per se, but amended the Internal Revenue Code to levy a “tax on individuals without acceptable health coverage.” Functionally, the two provisions are essentially the same. (Interestingly, opponents concede that Congress could lawfully establish single-payer (Medicare for All, say), and tax us to pay for it.)

In 1944, Supreme Court established that insurance is an economic activity that falls within Congress’ regulatory power. More recently, the Lopez and Gonzales cases clarified how the Court understands “economic” and “non-economic” activities within the context of Commerce Clause. In Lopez, Court held that Congress exceeded its authority by legislating against guns near schools; in Gonzales, it ruled that the act of growing marijuana at home could be regulated by the federal government even though the conduct was not itself economic, because the larger interstate “regulatory scheme would be undercut unless the intrastate activity were regulated.” As one scholar has summarized, “ If health insurance is itself an ‘ingredient’ of interstate commerce and ‘self-evidently’ within Congress’ Commerce Clause authority, the statutory goals for broadening, making more efficient and less costly, and otherwise improving health insurance coverage, fit equally within that authority.

Further, the individual mandate requirement easily qualifies as a ‘necessary and proper’ means of achieving those goals, under the standard first articulated by Chief Justice Marshall [in 1819] and adhered to since: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

The Federalist Society and other opponents of the mandate have argued that refusal to purchase insurance is inactivity, and thus not subject to regulation. How, they ask, can government regulate a decision not to act?  But as judges have noted who upheld the mandate, people who refuse to buy insurance are not doing “nothing.” They are gambling that they won’t need coverage, or they are deciding to self-insure. In either case, they are also deciding to game the system, making the overall program unworkable.

Refusal to purchase health insurance would be analogous to refusal to pay social security and Medicare taxes or, at the state level, refusal to purchase auto insurance.

Most constitutional scholars believe the mandate will be upheld; others–noting the ideological tilt of several of the Justices–are less certain, although they agree that precedents would ordinarily require such a result.

Ironically, since opponents of the mandate are making the case that ONLY a single-payer system is constitutional, a victory for opponents might actually result in the enactment of a single-payer system, since the multiple markets we’ve been operating under are simply not sustainable.

Works for me.

I Don’t Like This Law So It Must Be Unconstitutional

Yesterday, I spoke to a high school government class, filled with bright high school seniors who have thus far escaped any meaningful encounter with the U.S. Constitution.It came as a surprise to most of them, for example, that the Bill of Rights applies only against government. So we talked a good deal about the limits on government action, and what our government can and cannot require of us.

One of the students asked about the constitutionality of the individual mandate provision of the new health-care reform law.

Now, I’m not a fan of the new law; I would have much preferred a simple “Medicare for All” approach.  But there are a lot of laws I dislike, and a lot that I believe represent poor policy choices. That doesn’t make those laws unconstitutional.

There is absolutely no doubt that government could constitutionally establish “socialized” medicine–whether along the lines of Medicare for All, or another single-payer system funded out of tax revenues. The Affordable Care Act works with private insurance companies–and politically, that’s undoubtedly the only way it could be passed. But in order for the new system to work, everyone must purchase insurance. Opponents claim the government cannot force people to do so.

The bill offers subsidies to people who cannot afford insurance. It exempts people for whom the purchase of insurance would be a financial hardship. It grants other exemptions for American Indians, for those with religious objections, undocumented immigrants, incarcerated individuals, and those living below the poverty level. The rest of us must buy.

Two separate constitutional provisions allow the government to require this: the taxing power and the commerce clause.

The taxing power argument is straightforward: we either buy insurance or we pay a tax. The Commerce Clause gives Congress considerable latitude to craft “rational” means to achieve “legitimate” purposes. Opponents argue that a decision not to buy insurance is “inactivity” and that “inactivity” cannot be taxed or regulated. But as constitutional scholars have pointed out, those who choose to go without insurance–insurance that the government is making affordable for them, even subsidizing for them–are in fact doing something. They are shifting costs to everyone else. As Yale Law Professor Jack Balkin has written, they are making a decision to self-insure. That decision “games” the system and makes it more expensive for everyone else.

The individual mandate is not functionally different from our obligation to pay Social Security and Medicare taxes, or the requirement to carry auto insurance.

At the end of the day, the argument against the mandate–and the Affordable Care Act–is simple, if uninformed: I don’t like this law, therefore it is unconstitutional.