# 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:** 11
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 23, 2010, 6:24pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/201 "2010-03-23T18:24:32Z")
> [@The\_Second\_Stone](#): > > The commerce clause does not reach to individuals not in interstate commerce Ahem. _Wickard v. Filburn_, 317 U.S. 111 (1942). ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 23, 2010, 6:28pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/202 "2010-03-23T18:28:12Z")
> [@The\_Second\_Stone](#): > > I’m going to predict that the Supreme Court will strike down the portion of the bill that mandates individuals buying insurance. The commerce clause does not reach to individuals not in interstate commerce, and the taxing power (a very interesting argument) does not reach into mandating anything other than taxing. Personally I think the bill is better without the mandate. All this IS is a tax. It will stand easily. It probably won’t even get cert. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 23, 2010, 6:38pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/203 "2010-03-23T18:38:31Z")
> [@villa](#): > > Ahem. _Wickard v. Filburn_, 317 U.S. 111 (1942). Sorry - Should probably have said what the case was… Anyway, _Wickard_ explicitly states that the Commerce Clause does reach individuals not involved in interstate commerce, provided their actions have any effect on interstate commerce. A farmer was growing wheat to feed to his own chickens, and grew more than the federally set quota for the amount of land he was growing it on, said quotas having been introduced to support prices. The farmer was ordered to destroy the wheat and pay a fine. He appealed all the way to SCOTUS, arguing the law was unconstitutional as his personal growth of wheat was not part of interstate commerce. He lost. The case is still good law, and was cited to in _Lopez_ (the Court’s most recent restriction on Commerce Clause legislation) as being the outer limit of Congressional powers in this arena. I think it still gets used to justify federal involvement in the prosecution of marijuana growers for their own use. Now, if a farmer growing wheat for his own chickens is sufficient to justify use of the Commerce Clause, given the idea that **not** buying wheat on the open market affects price, so then does an individual’s decision whether or not to purchase health insurance, especially when insurance is noted as a product that is inherently part of interstate commerce. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 23, 2010, 6:47pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/204 "2010-03-23T18:47:12Z")
> [@Diogenes\_the\_Cynic](#): > > All this IS is a tax. It will stand easily. It probably won’t even get cert. Well, it would have to be brought in the Fourth, Fifth, Ninth, or DC circuit, right? All it would need is one contrary decision there, say a panel with two arch-conservatives on it, and then survive an en banc motion. The Supremes surely wouldn’t let a contrary circuit ruling or circuit split stand. So if it loses at the circuit level, I agree it probably won’t get cert. But that’s just what to focus on, because if it wins at even one circuit, it’s practically guaranteed cert. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [March 23, 2010, 6:56pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/205 "2010-03-23T18:56:49Z")
> [@Bricker](#): > > If they do, that will be disappointing. > > Mind you, I like that result. But since the vast bulk of Commerce Clause jurisprudence supports the mandate, if they act as you suggest, it will be a very results-based decision. And that will be quite disappointing. It’s been a long time since I studied the Commerce Clause ™ and I see that someone has cited Wickard v. Filburn, the wheat grown for a farmer’s own chickens case. That wheat reaches interstate commerce because it takes that demand off the market. I see the insurance mandate requiring that individuals enter the market, which is a step further. People have been entitled to leave any market they wished under federal labor laws. I don’t see the USSC’s conservatives going along on the Commerce Clause. Nor do I see them going along on the taxing power, although that seems a smidge (legal term) more likely to me. I’m a long way away from having reviewed constitutional law, and a lot may have changed, but if I were sitting on the court as a liberal democrat, I’d have trouble seeing where the US gov’t gets the authority to tell individual citizens that they must spend their money on a product. ---
**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 23, 2010, 7:12pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/206 "2010-03-23T19:12:01Z")
> [@The\_Second\_Stone](#): > > I’m a long way away from having reviewed constitutional law, and a lot may have changed, but if I were sitting on the court as a liberal democrat, I’d have trouble seeing where the US gov’t gets the authority to tell individual citizens that they must spend their money on a product. A product pretty much everyone in the United States consumes at one point or another, a product for which there is not much in the way of a lesser alternative (unless you can somehow tell the paramedics when you are unconscious from a car accident you want a slower, cheaper ambulance and please take them to the discount hospital and only set one broken leg) and a product which, one way or another, everyone in the US ends up sharing the cost (e.g. if you are wheeled unconscious into an ER they do not card you and dump you on the street if you cannot prove ability to pay…everyone else picks up that tab). ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [March 23, 2010, 7:26pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/207 "2010-03-23T19:26:19Z")
And that is as good an argument for it as we will see. Let’s see if it works. ---
**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 23, 2010, 9:37pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/208 "2010-03-23T21:37:49Z")
> [@The\_Second\_Stone](#): > > And that is as good an argument for it as we will see. Let’s see if it works. FWIW here is an article that lays it all out pretty well (I think). Yes it is Talking Points Memo but they seem to give a fair amount of space to the notions of why this is unconstitutional as well as the counter arguments. Here is the up-shot: > [@](#): > > Frederick Schauer, a constitutional law scholar at the University of Virginia, expresses what seems to be the most reliable view. He notes to TPMmuckraker that in the Lopez case, and in a subsequent 2000 case involving the Violence Against Women Act, the Supreme Court has held that there are limits on what constitutes commercial activity under the Commerce Clause – shifting from the “anything goes” approach that had predominated since the New Deal. Despite the subsequent medical marijuana ruling, Schauer says, those cases offer the “slightest glimmer” to opponents of the bill – but not much more than that. So twenty years ago, said Schauer, there would have been essentially no chance of the court striking down the legislation. Today, he says, “it’s a real long-shot,” but not completely out of the question. > > SOURCE: [http://tpmmuckraker.talkingpointsmemo.com/2010/03/could\_scotus\_be\_the\_death\_panel\_for\_health-care\_reform.php](http://tpmmuckraker.talkingpointsmemo.com/2010/03/could_scotus_be_the_death_panel_for_health-care_reform.php) ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [March 23, 2010, 11:53pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/209 "2010-03-23T23:53:41Z")
Good link. Is TPM a conservative or liberal outlet? I can’t tell (maybe that means they are neutral?) ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [March 24, 2010, 12:14am UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/210 "2010-03-24T00:14:32Z")
Fact based. Reality oriented. Centrist. ---
**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 24, 2010, 3:08am UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/211 "2010-03-24T03:08:22Z")
> [@elucidator](#): > > Fact based. Reality oriented. Centrist. I agree but unfortunately these days that seems to equate to “very liberal”. ---
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [March 25, 2010, 12:15am UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/212 "2010-03-25T00:15:27Z")
I read the complaint. The States are whining that they have to participate when they don’t want to. You know, if I were on the Supreme Court, I’d strike down the portion that requires States to even participate in the Act. We ought to give UHC to the States EXCEPT those States who don’t want to participate. If Floridians vote that don’t want federal funds to establish UHC, then why force it down it their throat? Fuck them. We could use those funds to build a bigger hospital or hire more doctors in a state that wants UHC. If there are individual citizens in Florida that want UHC, we should encourage them to move to the panhandle and apply for Georgian citizenship (as Alabama doesn’t want UHC, either). ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [March 25, 2010, 2:36am UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/213 "2010-03-25T02:36:16Z")
> [@Whack-a-Mole](#): > > I agree but unfortunately these days that seems to equate to “very liberal”. If you’re telling the truth, not in my book. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 25, 2010, 2:58am UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/214 "2010-03-25T02:58:24Z")
What is the deifinition of a tax? Seriously! By calling it a tax, it makes it ok. That’s why social security is not insurance and is constitutional. Tax and Spend and South Dakota v. Dole. Etc. But if you have to pay the government money for violating a law, then is it a tax and not a fine? Calling it a fine reminds me when states can’t raise taxes without voter approval so the legislature raises the sales tax 1%. “But you can’t do that!” “Sure we can because it’s not a tax. It’s a ‘sales surcharge’”. So if it is not a tax but a fine, then would it still be Constitutional? Can the Commerce Clause compel someone to buy something? Instead of price controls on corn, could the ICC be used to force every American to buy 5 bushels of corn a week or pay a “tax”? Remember, I’m not compelled to buy auto insurance. I can have a bond or not own a car so I’m not forced to buy insurance or pay a fine (ooops tax). ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 25, 2010, 3:28am UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/215 "2010-03-25T03:28:26Z")
> [@Saint\_Cad](#): > > What is the deifinition of a tax? > Seriously! By calling it a tax, it makes it ok. That’s why social security is not insurance and is constitutional. Tax and Spend and South Dakota v. Dole. Etc. > > But if you have to pay the government money for violating a law, then is it a tax and not a fine? Calling it a fine reminds me when states can’t raise taxes without voter approval so the legislature raises the sales tax 1%. “But you can’t do that!” “Sure we can because it’s not a tax. It’s a ‘sales surcharge’”. So if it is not a tax but a fine, then would it still be Constitutional? > > Can the Commerce Clause compel someone to buy something? Instead of price controls on corn, could the ICC be used to force every American to buy 5 bushels of corn a week or pay a “tax”? Remember, I’m not compelled to buy auto insurance. I can have a bond or not own a car so I’m not forced to buy insurance or pay a fine (ooops tax). From [url=]_Steward Machine Company vs. Davis_: > [@](#): > > “It is one thing to impose a tax dependent upon the conduct of the taxpayers, or of the state in which they live, where the conduct to be stimulated or discouraged is unrelated to the fiscal need subserved by the tax in its normal operation, or to any other end legitimately national. **It is quite another thing to say that a tax will be abated upon the doing of an act that will satisfy the fiscal need, the tax and the alternative being approximate equivalents. In such circumstances, if in no others, inducement or persuasion does not go beyond the bounds of power.** ” The Court has ruled that it can use this kind of penal tax if the actions that are being encouraged serve the same fiscal need as the tax. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 25, 2010, 12:59pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/216 "2010-03-25T12:59:24Z")
> [@Honesty](#): > > I read the complaint. The States are whining that they have to participate when they don’t want to. You know, if I were on the Supreme Court, I’d strike down the portion that requires States to even participate in the Act. We ought to give UHC to the States EXCEPT those States who don’t want to participate. If Floridians vote that don’t want federal funds to establish UHC, then why force it down it their throat? Fuck them. We could use those funds to build a bigger hospital or hire more doctors in a state that wants UHC. If there are individual citizens in Florida that want UHC, we should encourage them to move to the panhandle and apply for Georgian citizenship (as Alabama doesn’t want UHC, either). I believe you. Liberals seem to think that judges should strive to do what they think is right, to use the law to shape good public policy. And this is why liberals and conservatives have very different views of the role of a judge. I completely disfavor this initiative. It’s poor public policy. But as a judge, my only question to confront would be, “Is it constitutional?” The answer being yes, I would uphold it. I might well give in to the temptation to write a separate opinion so I could drop a sentence in about how unwise I personally found it, but that would be the extent of how my feeling of what good public policy is would drive my decision on what the law is. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 25, 2010, 1:23pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/217 "2010-03-25T13:23:36Z")
> [@Diogenes\_the\_Cynic](#): > > From [url=]_Steward Machine Company vs. Davis_: > > The Court has ruled that it can use this kind of penal tax if the actions that are being encouraged serve the same fiscal need as the tax. Exactly correct. Right on point. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [March 25, 2010, 7:56pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/218 "2010-03-25T19:56:26Z")
> [@villa](#): > > Sorry - Should probably have said what the case was… > > Anyway, _Wickard_ explicitly states that the Commerce Clause does reach individuals not involved in interstate commerce, provided their actions have any effect on interstate commerce. A farmer was growing wheat to feed to his own chickens, and grew more than the federally set quota for the amount of land he was growing it on, said quotas having been introduced to support prices. The farmer was ordered to destroy the wheat and pay a fine. He appealed all the way to SCOTUS, arguing the law was unconstitutional as his personal growth of wheat was not part of interstate commerce. He lost. The case is still good law, and was cited to in _Lopez_ (the Court’s most recent restriction on Commerce Clause legislation) as being the outer limit of Congressional powers in this arena. I think it still gets used to justify federal involvement in the prosecution of marijuana growers for their own use. > > Now, if a farmer growing wheat for his own chickens is sufficient to justify use of the Commerce Clause, given the idea that **not** buying wheat on the open market affects price, so then does an individual’s decision whether or not to purchase health insurance, especially when insurance is noted as a product that is inherently part of interstate commerce. I’ve often wondered just how much power this interpretation gives the federal government. If the feds can force you to stop growing something so you will be forced to buy it then is there anything the federal government cannot do? I know very little about constitutional law but am aware that the current court has scaled back the commerce clause somewhat. Has this case been used recently to give the feds increased control over things? Maybe I’m being naive but this seems to contradict everything the founding fathers stood for. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 25, 2010, 8:08pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/219 "2010-03-25T20:08:09Z")
Well, in _U.S. v. Lopez_, 514 U.S. 549 (1995), the Chief Justice attempted to clarify the scope of _Wickard_, affirming its continuing validity, as follows: [QUOTE=Chief Justice Rehnquist] Similarly, in Maryland v. Wirtz, 392 U.S. 183 (1968), the Court reaffirmed that “the power to regulate commerce, though broad indeed, has limits” that “[t]he Court has ample power” to enforce. Id., at 196, overruled on other grounds, National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). In response to the dissent’s warnings that the Court was powerless to enforce the limitations on Congress’ commerce powers because “[a]ll activities affecting commerce, even in the minutest degree, [Wickard], may be regulated and controlled by Congress,” 392 U. S., at 204 (Douglas, J., dissenting), the Wirtz Court replied that the dissent had misread precedent as “[n]either here nor in Wickard has the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities,” id., at 197, n. 27. Rather, “[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Ibid. (first emphasis added). [/QUOTE] So where the overall statute is impactful on commerce, the fact that it applies to individuals, whose actions have only a _de minimis_ impact on commerce is permissible. If the statute itself has a _de minimis_ impact on commerce, then it is unconstitutional. It seems to me as regards health care this legislation falls into the former rather than the latter category. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 25, 2010, 8:14pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/220 "2010-03-25T20:14:33Z")
> [@Bricker](#): > > I believe you. Liberals seem to think that judges should strive to do what they think is right, to use the law to shape good public policy. > > And this is why liberals and conservatives have very different views of the role of a judge. My garage could use a good painting. Why don’t you and that incredibly broad brush stop by. I’m sure you could finish it in a couple seconds. [Previous page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=10) [Next page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=12)