Is the individual mandate to purchase health insurance constitutional?

Within the recent health insurance reform bill is a mandate that individuals purchase health insurance. Many see this as an unprecedented move by the federal government. Since this is unprecedented, no court opinions (that I am aware of) exist holding whether the federal government can force individuals to purchase something from the private market.

Supporters of the bill will likely say the federal government has this power through the Commerce Clause of the Constitution.

Article I, Section 8, Clause 3:

I agree with this view. Professor Randy Barnett takes a different view here and here.

So what say you? Does the Commerce Clause allow the federal government to require individuals to purchase insurance? If it does not and we follow Professor Barnett’s argument, should the Court create a new constitutional doctrine allowing this? How narrow should this construction be? Finally, from a philosophical standpoint, should a government be able to force its citizens to purchase a product from the private market?

I wouldn’t justify it via the commerce clause, if I was a legalese master, I’d justify it by regulating public good/health.

Well, we have to analyze the current health care bill, not some pretend health care bill. You get a choice: either purchase insurance or pay an extra tax. Our tax code is used this way all over the place, so there’s no need to create any new doctrines for this bill.

Can you tell me where in the presently existing federal tax code, a tax is imposed on an individual when they fail to purchase something federal law requires them to purchase?

Second, the mandate is not as optional as you describe it. The law requires individuals to obtain health insurance.

Everyone who buys a new house pays less in taxes that year than everyone who doesn’t. So why can’t everyone who buys insurance pay less than everyone who doesnt?

This clause does not exist in the U.S. Constitution. There is a clause in Article I, Section 8, giving Congress the power to tax and spend to promote the General Welfare. However, there is still a question whether such a provision, or any provision, in Article I, Section 8 authorizes Congress to mandate people purchase something.

Do you have auto insurance? Why or why not?

Call health care a tax if you prefer. Amounts to the same thing.

That’s the one I meant, I was just too lazy to be specific about it or look it up.

And congress doesn’t mandate that you purchase health insurance. They’re taxing you, and if you have health insurance, giving you tax break if you have it.

Taxing, and spending, to promote general welfare.

You should know, I’m neither for or against it, just engaging in a hypothetical about how I’d justify it if I was a legal eagle.

Here is a good take on it:


I’m not playing this kind of obfuscation game with you. Congress has the power to lower or raise your individual tax based on your economic behavior. If you purchase a mortgage you pay lower tax. If you get a student loan, you pay lower tax. And now, if you purchase health insurance, you will get a lower tax. There’s no difference here.

OR pay an additional tax. If the Senate bill sent you to jail for not getting insurance, you would have an argument. But it doesn’t.

Do we know yet what the “extra tax” is?

I think this is it:

In other words, no you cannot provide a specific federal tax law to support your prior remark. In addition, your examples above may not be parallel. The federal tax code does not read, “Those without student loans will pay $95 a year or 1 percent household’s income; in 2015, $325 or 2 percent of income; in 2016, $695 or 2.5 percent of income (with a maximum of $2,085 for a family).” Neither does it read, “Those who have not purchased a home, or have a mortgage, will pay $95 a year or 1 percent household’s income; in 2015, $325 or 2 percent of income; in 2016, $695 or 2.5 percent of income (with a maximum of $2,085 for a family).”

So I wonder if your examples are parallel?

I have an argument without the threat of jail time. The lack of jail time does not make it any less or more optional or a mandate.

Not if you don’t have a car.

From here:

Yes but the imposition of the tax is predicated upon a failure to purchase something. The question is whether Congress can impose a tax on the basis somebody did not purchase something. Can Congress impose a tax for not purchasing a home? Can Congress impose a tax for failure to purchase a book? Can Congress impose a tax for failure to purchase some other good? The imposition of the tax having the express design, purpose, and intention to force people to purchase something.

I don’t see why not. The constitution gives them the power levy excise taxes, there isn’t any reason to think that doesn’t cover taxing not doing things.

Undoubtedly, attorneys defending Congress’ power to impose the proverbial “mandate” will assert this provision is justified under the “substantially affects commerce” doctrine first announced in the U.S. Supreme Court case of Wickard v. Filburn, and relied upon by Justice Scalia to uphold the constitutionality of federal drug laws in the case of Gonzales v. Raich.

I did. You’ve just chosen to pretend the tax code operates in some other way then it actually does.


I don’t know how many ways to phrase this. The government can increase or lower your taxes based on your behavior. If you don’t think it can, then you have to throw out most of the tax code.

You have a choice to do one of two things under this bill. When you get a choice to do one of two things, we usually refer to that as an option.