# Is the individual mandate to purchase health insurance constitutional? **URL:** \ **Category:** Great Debates\ **Created:** [March 22, 2010, 4:14pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349 "2010-03-22T16:14:03Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![kingbighair](https://avatars.discourse-cdn.com/v4/letter/k/13edae/32.png) [@kingbighair](https://boards.straightdope.com/u/kingbighair)\ **Post date:** [March 22, 2010, 4:14pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/1 "2010-03-22T16:14:03Z")
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** : > [@](#): > > [The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes; I agree with this view. Professor Randy Barnett takes a different view [here](http://www.washingtonpost.com/wp-dyn/content/article/2010/03/19/AR2010031901470.html) and [here](http://www.heritage.org/Research/Reports/2009/12/Why-the-Personal-Mandate-to-Buy-Health-Insurance-Is-Unprecedented-and-Unconstitutional). [QUOTE=Randy Barnett] Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and, as this paper will explain, no decision or present doctrine of the Supreme Court justifies such a claim of power. Therefore, because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine. [/QUOTE] 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? ---
**Author:** ![Todderbob](https://avatars.discourse-cdn.com/v4/letter/t/e47774/32.png) [@Todderbob](https://boards.straightdope.com/u/Todderbob)\ **Post date:** [March 22, 2010, 4:16pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/2 "2010-03-22T16:16:32Z")
I wouldn’t justify it via the commerce clause, if I was a legalese master, I’d justify it by regulating public good/health. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [March 22, 2010, 4:17pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/3 "2010-03-22T16:17:51Z")
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. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 22, 2010, 4:28pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/4 "2010-03-22T16:28:06Z")
> [@BrightNShiny](#): > > 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. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [March 22, 2010, 4:29pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/5 "2010-03-22T16:29:37Z")
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? ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 22, 2010, 4:30pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/6 "2010-03-22T16:30:18Z")
> [@Todderbob](#): > > I wouldn’t justify it via the commerce clause, if I was a legalese master, I’d justify it by regulating public good/health. 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. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [March 22, 2010, 4:33pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/7 "2010-03-22T16:33:19Z")
Do you have auto insurance? Why or why not? Call health care a tax if you prefer. Amounts to the same thing. ---
**Author:** ![Todderbob](https://avatars.discourse-cdn.com/v4/letter/t/e47774/32.png) [@Todderbob](https://boards.straightdope.com/u/Todderbob)\ **Post date:** [March 22, 2010, 4:35pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/8 "2010-03-22T16:35:09Z")
> [@NotreDame05](#): > > 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. 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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 22, 2010, 4:35pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/9 "2010-03-22T16:35:41Z")
Here is a good take on it: > [@](#): > > Ken Klukowski, writing in POLITICO, argued that “people who declined to purchase government-mandated insurance would not be engaging in commercial activity, so there’s no interstate commerce.” Klukowski’s argument is flawed because the Supreme Court never has said that the commerce power is limited to regulating those who are engaged in commercial activity. > > Quite the contrary: The court has said that Congress can use its commerce power to forbid hotels and restaurants from discriminating based on race, even though their conduct was refusing to engage in commercial activity. Likewise, the court has said that Congress can regulate the growing of marijuana for personal medicinal use, even if the person being punished never engaged in any commercial activity. > > Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect. > > \ > > Congress also could justify this as an exercise of its taxing and spending power. Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the system. This is similar to Social Security taxes, which everyone pays to cover the costs of the Social Security system. Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it to Congress to determine this. > > \ > > Since the 19th century, the Supreme Court has consistently held that a tax cannot be challenged as an impermissible take of private property for public use without just compensation. All taxes are a taking of private property for public use, but no tax has ever been invalidated on that basis. > > Read more: [http://www.politico.com/news/stories/1009/28620.html#ixzz0ivLOlUnf](http://www.politico.com/news/stories/1009/28620.html#ixzz0ivLOlUnf) ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [March 22, 2010, 4:35pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/10 "2010-03-22T16:35:48Z")
oops ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [March 22, 2010, 4:37pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/11 "2010-03-22T16:37:06Z")
> [@NotreDame05](#): > > 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? 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. > [@](#): > > Second, the mandate is not as optional as you describe it. The law requires individuals to obtain health insurance. 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. ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [March 22, 2010, 4:38pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/12 "2010-03-22T16:38:13Z")
> [@BrightNShiny](#): > > 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? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 22, 2010, 4:48pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/13 "2010-03-22T16:48:31Z")
> [@Kearsen](#): > > Do we know yet what the “extra tax” is? I think this is it: > [@](#): > > Come 2015, individuals who choose not to buy insurance would pay the greater of $325 or up to 2% in income ($695 or up to 2.5% in income thereafter). > > Those whose incomes are low enough that they are not required to file a tax return would be exempt from this requirement. > > SOURCE: [http://money.cnn.com/2010/03/20/news/economy/cbo\_reconciliation/index.htm](http://money.cnn.com/2010/03/20/news/economy/cbo_reconciliation/index.htm) ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 22, 2010, 4:49pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/14 "2010-03-22T16:49:33Z")
> [@BrightNShiny](#): > > 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. 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? > [@](#): > > If the Senate bill sent you to jail for not getting insurance, you would have an argument. 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. ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [March 22, 2010, 4:51pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/15 "2010-03-22T16:51:39Z")
> [@ElvisL1ves](#): > > Do you have auto insurance? Not if you don’t have a car. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [March 22, 2010, 4:51pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/16 "2010-03-22T16:51:41Z")
> [@Kearsen](#): > > Do we know yet what the “extra tax” is? From [here](http://www.kff.org/healthreform/sidebyside.cfm): > [@](#): > > Those without coverage pay a tax penalty of the greater of $750 per year up to a maximum of three times that amount ($2,250) per family or 2% of household income. The penalty will be phased-in according to the following schedule: $95 in 2014, $495 in 2015, and $750 in 2016 for the flat fee or .5% of taxable income in 2014, 1.0% of taxable income in 2015, and 2% of taxable income in 2016. Beginning after 2016, the penalty will be increased annually by the cost-of-living adjustment. Exemptions will be granted for financial hardship, religious objections, American Indians, those without coverage for less than three months, undocumented immigrants, incarcerated individuals, if the lowest cost plan option exceeds 8% of an individual’s income, and if the individual has income below 100% of the poverty level. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 22, 2010, 4:53pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/17 "2010-03-22T16:53:33Z")
> [@Todderbob](#): > > 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. 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. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [March 22, 2010, 4:54pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/18 "2010-03-22T16:54:14Z")
> [@NotreDame05](#): > > Yes but the imposition of the tax is predicated upon a failure 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. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 22, 2010, 4:57pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/19 "2010-03-22T16:57:53Z")
> [@Whack-a-Mole](#): > > Here is a good take on it: 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._ ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [March 22, 2010, 4:58pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/20 "2010-03-22T16:58:10Z")
> [@NotreDame05](#): > > In other words, no you cannot provide a specific federal tax law to support your prior remark. I did. You’ve just chosen to pretend the tax code operates in some other way then it actually does. > [@](#): > > 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? > [@](#): > > So I wonder if your examples are parallel? 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. > [@](#): > > 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. 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. [Next page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=2)