# 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:** 3
**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, 5:31pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/41 "2010-03-22T17:31:38Z")
> [@kingbighair](#): > > Actually, I was wondering if it is permissible for the federal government to force you to buy something. Something which seems pretty novel. Is there a history of this practice? Yes, everything you get from the feds in return for your federal income taxes. ---
**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 22, 2010, 5:35pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/42 "2010-03-22T17:35:07Z")
> [@kingbighair](#): > > Actually, I was wondering if it is permissible for the federal government to force you to buy something. Something which seems pretty novel. Is there a history of this practice? This is new and unprecedented. That’s why it’s going down like Madonna on her honeymoon, once the Supremes get ahold of it. ---
**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, 5:35pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/43 "2010-03-22T17:35:22Z")
> [@ElvisL1ves](#): > > Yes, everything you get from the feds in return for your federal income taxes. Interesting. So that means that some folks are forced to buy things at more than face value, right? And forced to buy things they do not want or need. ---
**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 22, 2010, 5:36pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/44 "2010-03-22T17:36:40Z")
> [@ElvisL1ves](#): > > The states can’t do anything the feds can’t under the fed constitution, remember? > > Regards etc., > ElvisL1ves Wait… what? You got that backwards I think. In the universe of things that government might do to affect your life, constitutionally speaking, the states’ powers outnumber the fed’s powers by, roughly speaking, a billion to one. ---
**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 22, 2010, 5:38pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/45 "2010-03-22T17:38:03Z")
> [@Contrapuntal](#): > > Interesting. So that means that some folks are forced to buy things at more than face value, right? And forced to buy things they do not want or need. I had to pay for a war I didn’t want or need. I have to pay for the federal death penalty. People pay for schools they don’t use, and roads they don’t drive on. Your civic responsibility is not limited to things you personally want or need. ---
**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 22, 2010, 5:39pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/46 "2010-03-22T17:39:29Z")
> [@Mr\_Smashy](#): > > Wait… what? You got that backwards I think. > > In the universe of things that government might do to affect your life, constitutionally speaking, the states’ powers outnumber the fed’s powers by, roughly speaking, a billion to one. Name one thing states can do that the feds can’t do. ---
**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, 5:39pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/47 "2010-03-22T17:39:42Z")
> [@Contrapuntal](#): > > Interesting. So that means that some folks are forced to buy things at more than face value, right? And forced to buy things they do not want or need. Funny how this “government” stuff has to work, innit? ---
**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, 5:43pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/48 "2010-03-22T17:43:18Z")
> [@Diogenes\_the\_Cynic](#): > > I had to pay for a war I didn’t want or need. Me too. I am unsure how that justifies the practice. > [@](#): > > Name one thing states can do that the feds can’t do. Issue a NC driver’s license. [QUOTE=Elvis] Funny how this “government” stuff has to work, innit? [/QUOTE] Cite that it has to work that way? ---
**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 22, 2010, 5:43pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/49 "2010-03-22T17:43:55Z")
It should probably be pointed out that very few people are actually going to end up being subject to this tax. If you make enough money to be subject to it, you probably already have insurance anyway. ---
**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 22, 2010, 5:46pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/50 "2010-03-22T17:46:50Z")
> [@Contrapuntal](#): > > Me too. I am unsure how that justifies the practice. It’s up to you to show how it’s NOT Constitutionally justified. > [@](#): > > Cite that it has to work that way? Can you provide an working model for a government which can function _without_ collecting taxes to pay for anything that isn’t unanimously agreed upon by the populace? ---
**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, 5:47pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/51 "2010-03-22T17:47:48Z")
> [@Diogenes\_the\_Cynic](#): > > People pay for schools they don’t use, and roads they don’t drive on. Your civic responsibility is not limited to things you personally want or need. Oh, I agree. I was trying to point out the silliness of \*\*Elvis \*\*referring to such as the feds forcing people to buy stuff. It’s a pretty strained analogy. ---
**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 22, 2010, 5:48pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/52 "2010-03-22T17:48:30Z")
Another way to look at this “mandate,” by the way, is that’s it’s nothing more than a tax credit for those who buy health insurance. ---
**Author:** ![Zephyurs](https://avatars.discourse-cdn.com/v4/letter/z/dfb087/32.png) [@Zephyurs](https://boards.straightdope.com/u/Zephyurs)\ **Post date:** [March 22, 2010, 5:49pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/53 "2010-03-22T17:49:23Z")
If it were by chance struck down (unlikely), that just strikes down that section of the bill and not the bill in its entirety, correct? In which case, I wish the legal radicals all the luck in the world. If you get rid of that provision, the private insurance market is dead by the end of the decade. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [March 22, 2010, 5:50pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/54 "2010-03-22T17:50:29Z")
In economics the taxation of people to provide all sorts of services, such as police, fire protection, roads etc. is predicated on the concept that most folks would not pay for it themselves. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 22, 2010, 5:51pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/55 "2010-03-22T17:51:48Z")
I suspect strongly that the present bill is generally constitutional, but that that particular clause is not. (Which is not to say that the Federal government cannot require that citizens either purchase health insurance or pay taxes to subsidize their costs, just that the particular mechanism in this particular bill fails Constitutional muster.) First, the “general welfare” clause does in fact enable Congress to levy “taxes, imposts, and excises”, independently of the succeeding clauses. That’s based on the text; the theory that it merely enables Congress to raise money with which to carry out the enumerated powers, while it has some precedent, is pure penumbral interpretation. Second, much of what is used in health care is shipped via interstate commerce. So IMO the general principle that the Federal government may engage in regulating and subsidizing health care is in fact a constitutional power. By the way, the analogy with mandatory automobile insurance or school taxes fails. They are state laws, using the reserved powers guaranteed by the Tenth Amendment. What a state may do and what the Federal government may do are two different animals. The Feds. may not mandate automobile liability insurance (arguably; one might make a case under the Commerce Clause) and may not levy direct property taxes. However, there are restrictions on how Congress may raise money. First, it must be a “tax, impost, or excise”, or else a fine imposed as a penalty for a specific criminal offense defined in statute. (The latter is not specified in the Constitution, but is a commonplace of criminal law construction.) Direct taxes must either be either apportioned according to state populations or be founded on income. As a tax penalty with an income-based threshold, it qualifies as Constitutional. However, and here’s the kicker: As a law imposing a tax, ir must originate in the House. The law imposing this tax penalty for failure to contract for health care insurance was passed, thanks to the filibuster threat, by the House acceding to the bill that was introduced in and passed the Senate. Yes, this is purely nitpickery, but it’s the sort of nitpickery that makes Constitutional law. Congress in fact has the power to mandate health care insurance – but it must do it in accord with its Constitutional power grant. The tax penalty clause fails, because it is a tax imposed by a law that originated in the Senate rather than the House. ---
**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, 5:55pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/56 "2010-03-22T17:55:16Z")
> [@Diogenes\_the\_Cynic](#): > > It’s up to you to show how it’s NOT Constitutionally justified. That’s not actually true. You’re asking him to prove a negative. The constitution isn’t a list of things that the government can’t do, it’s a list of things that the government _can_ do, and a list of things (although incomplete) that they can’t do. ---
**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, 5:58pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/57 "2010-03-22T17:58:45Z")
> [@Lobohan](#): > > I don’t know why this is so hard for some people to understand. Think of it this way, the govt. just raised taxes on everyone. You get a tax credit equal to the penalty if you have insurance coverage. > > Anyone who think this is unconstitutional isn’t thinking clearly about the issue and getting bogged down in semantics. It is not that simple. Look, I support the bill. Honestly, I would rather a single payer system. But that does not mean I automatically stop thinking because my side won. The bill explicitly states it is promulgating the mandate under the commerce clause. > [@](#): > > SEC. 1501. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE. > (a) FINDINGS.—Congress makes the following findings: > (1) IN GENERAL.—The individual responsibility requirement provided for in this section (in this sub-section referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2). > (2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following: > (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased. This is not simply a tax issue. It is not settled law that the commerce clause allows this. While we think it should, that does not mean it is so. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 22, 2010, 6:00pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/58 "2010-03-22T18:00:20Z")
> [@Diogenes\_the\_Cynic](#): > > Name one thing states can do that the feds can’t do. 1. Impose property taxes. 2. Allow a line-item veto. 3. Convict persons for “common law” (non-statutory) crimes. 4. Regulate land use by zoning laws. I’m fairly sure all of these are delimited to the states as opposed to the Feds. ---
**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, 6:00pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/59 "2010-03-22T18:00:55Z")
> [@Contrapuntal](#): > > Cite that it has to work that way? You can’t act collectively at all if anyone can simply opt out of anything. ---
**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, 6:01pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/60 "2010-03-22T18:01:55Z")
> [@ElvisL1ves](#): > > You can’t act collectively at all if anyone can simply opt out of anything. “I’m opting out of your opposition to the topic!” [Previous page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=2) [Next page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=4)