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?
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.
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.
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.
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.
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.
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.