# 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:** 4
**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, 6:02pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/61 "2010-03-22T18:02:18Z")
> [@Todderbob](#): > > 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. I’m asking him to show how it’s unconstitutional. You can’t just declare something unconstitutional by fiat. You have to show what part of the Constitution it violates. ---
**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, 6:02pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/62 "2010-03-22T18:02:41Z")
> [@Diogenes\_the\_Cynic](#): > > 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. $200K individual, $250K couple adjusted gross income. “But they’s raisin’ taxes!”, sez Billy Bob Bass Boat at the Teabagger rally. ---
**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, 6:02pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/63 "2010-03-22T18:02:55Z")
> [@kingbighair](#): > > 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. > > 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. We can certainly debate whether the bill is valid under the CC (I actually don’t think the argument that it is valid under the CC is that good). But when this goes to court, the government is going to argue for validity under both the CC and the 16th Amendment. ---
**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, 6:03pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/64 "2010-03-22T18:03:41Z")
> [@Todderbob](#): > > “I’m opting out of your opposition to the topic!” You’re joining an anarcho-syndicalist collective? 😃 ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [March 22, 2010, 6:04pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/65 "2010-03-22T18:04:29Z")
> [@Polycarp](#): > > 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. To nitpick your nitpick, the House passed HR 3590 on October 8. The Senate then amended the measure and passed it on Christmas Eve. The House, of course, took up the Senate-amended text and passed it. Here’s the funny part: the original House-passed bill had to do with tax incentives for members of the military trying to buy houses. The Senate amended that bill with all the health care stuff. So, in fact, a revenue bill did originate in the House, the Senate was free to “propose or concur with amendments as on other bills,” as stated by Article I Section 7, and now we have law. I, too, am very curious about the constitutionality of requiring people to buy something. I fully support the bill, I support requiring people to buy insurance, but I’m not quite sure how to justify this as supported by the Constitution. ---
**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, 6:04pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/66 "2010-03-22T18:04:46Z")
> [@Polycarp](#): > > 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. Can you show that the feds are _Constitutionally_ forbidden from doing any of these things? I know they could legislate a line item veto if they wanted. Just because they currently _don’t_ do something doesn’t mean they can’t. ---
**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, 6:06pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/67 "2010-03-22T18:06:06Z")
> [@ElvisL1ves](#): > > You can’t act collectively at all if anyone can simply opt out of anything. I hope your hands are clean, the way you keep putting words in my mouth. Why is the concept of taxation a justification for inefficient government? ---
**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, 6:06pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/68 "2010-03-22T18:06:31Z")
> [@Diogenes\_the\_Cynic](#): > > I’m asking him to show how it’s unconstitutional. You can’t just declare something unconstitutional by fiat. You have to show what part of the Constitution it violates. Actually, you don’t. You have to show what part of the constitution something is based on. Then, and only then, does it matter if it conflicts with a violation. ---
**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, 6:07pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/69 "2010-03-22T18:07:56Z")
> [@Diogenes\_the\_Cynic](#): > > I’m asking him to show how it’s unconstitutional. You can’t just declare something unconstitutional by fiat. You have to show what part of the Constitution it violates. While **Shodan** typically overstates the case in my epxerience, his principle is accurate: the Federal government is one of limited (although extremely broad) powers, and any power not expressly granted the Feds. or inferrable under the “necessary and proper” clause as being needed or useful in carrying out an express power (however liberally construed) is a power retained by the states and not granted to the Feds. That’s why, typically, a Federal law regulating, say, building construction will strain gnats and swallow camels to demonstrate that nails used in such construction were shipped by interstate commerce. ---
**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, 6:09pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/70 "2010-03-22T18:09:12Z")
> [@Ravenman](#): > > To nitpick your nitpick, the House passed HR 3590 on October 8. The Senate then amended the measure and passed it on Christmas Eve. The House, of course, took up the Senate-amended text and passed it. > > Here’s the funny part: the original House-passed bill had to do with tax incentives for members of the military trying to buy houses. The Senate amended that bill with all the health care stuff. > > So, in fact, a revenue bill did originate in the House, the Senate was free to “propose or concur with amendments as on other bills,” as stated by Article I Section 7, and now we have law. > > I, too, am very curious about the constitutionality of requiring people to buy something. I fully support the bill, I support requiring people to buy insurance, but I’m not quite sure how to justify this as supported by the Constitution. No one is required to buy anything. Some of them just lose a tax credit if they don’t. It’s no different than tax credits for college tuition or home buyers. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [March 22, 2010, 6:10pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/71 "2010-03-22T18:10:30Z")
> [@kingbighair](#): > > The bill explicitly states it is promulgating the mandate under the commerce clause. The judicial system is not limited to the interpretation of the legislature as to where the constitutionality of a particular law may be found. ---
**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, 6:13pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/72 "2010-03-22T18:13:09Z")
> [@Polycarp](#): > > While **Shodan** typically overstates the case in my epxerience, his principle is accurate: the Federal government is one of limited (although extremely broad) powers, and any power not expressly granted the Feds. or inferrable under the “necessary and proper” clause as being needed or useful in carrying out an express power (however liberally construed) is a power retained by the states and not granted to the Feds. > > That’s why, typically, a Federal law regulating, say, building construction will strain gnats and swallow camels to demonstrate that nails used in such construction were shipped by interstate commerce. I know what enumerated powers are. If that’s the argument, then the argument is that it _violates_ the 10th Amendment. That argument is specious demagoguery and will fail any court challenge, but it at least points to something in the Constitution, which is what I was asking for. The ability to impose taxes for the purposes of national defense and to declare wars IS an enumerated power, though, so the 10th Amendment has no application there. ---
**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, 6:13pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/73 "2010-03-22T18:13:58Z")
> [@Diogenes\_the\_Cynic](#): > > Name one thing states can do that the feds can’t do. Um… almost everything? Except what is listed in the enumerated powers. (Like force people to buy health insurance, for one…) ---
**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, 6:14pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/74 "2010-03-22T18:14:11Z")
> [@Diogenes\_the\_Cynic](#): > > I’m asking him to show how it’s unconstitutional. You can’t just declare something unconstitutional by fiat. You have to show what part of the Constitution it violates. To an extent you are correct, and the “extent” is contingent upon the context of the discussion. The U.S. Constitution does contain some provisions where both Congress and the states are expressly prohibited from doing something. However, when the discussion moves to the realm of Congress having the authority to do something under Article I, Section 8, then the burden rests on the individual asserting there is a provision in the U.S. Constitution giving Congress the power to do whatever it is doing. In other words, the burden is not on the individual stating Congress lacks this under Article I, Section 8, but the individual/person/people stating Congress has the authority under Article I, Section 8. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [March 22, 2010, 6:16pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/75 "2010-03-22T18:16:11Z")
> [@Diogenes\_the\_Cynic](#): > > No one is required to buy anything. Some of them just lose a tax credit if they don’t. It’s no different than tax credits for college tuition or home buyers. But that’s not how it is phrased in the bill. The bill literally says, “Requirement to Maintain Minimum Essential Coverage,” and states “An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” If you do not comply, you are assessed a “Penalty.” It’s all there in black and white in Section 1501. Note that the tax is not generally imposed on people, and then credits or deductions applied to mitigate the impact on people who take particular actions. In this case, as tax only applies to people who can afford insurance but choose not to buy it. Now, I suppose one could say that we are not required to file income taxes, except that if we choose not to then we have to pay a little more money out of our pocket, or perhaps have a surprise vacation at an interesting hotel. But in either case, I think we are stretching the term “not required” by quite a bit. ---
**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, 6:16pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/76 "2010-03-22T18:16:14Z")
> [@Mr\_Smashy](#): > > Um… almost everything? Except what is listed in the enumerated powers. > > (Like force people to buy health insurance, for one…) Commerce clause, general welfare. The feds can pretty much do anything they want. ---
**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, 6:18pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/77 "2010-03-22T18:18:11Z")
> [@Diogenes\_the\_Cynic](#): > > Commerce clause, general welfare. > > The feds can pretty much do anything they want. Both of which have been expanded, greatly, over their original intent. ---
**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, 6:19pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/78 "2010-03-22T18:19:46Z")
> [@NotreDame05](#): > > To an extent you are correct, and the “extent” is contingent upon the context of the discussion. The U.S. Constitution does contain some provisions where both Congress and the states are expressly prohibited from doing something. > > However, when the discussion moves to the realm of Congress having the authority to do something under Article I, Section 8, then the burden rests on the individual asserting there is a provision in the U.S. Constitution giving Congress the power to do whatever it is doing. In other words, the burden is not on the individual stating Congress lacks this under Article I, Section 8, but the individual/person/people stating Congress has the authority under Article I, Section 8. No. You’re the one claiming it’s a violation. You need to prove it. Good luck. This argument is hot air will amount to nothing. It’s really just an income tax, after all. The feds have very broad powers in that regard. Practically nobody will have to pay it anyway. Anyone making $200K a year is already going to have health insurance. ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [March 22, 2010, 6:20pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/79 "2010-03-22T18:20:17Z")
This opinion from the Washington Post makes a compelling argument that it is. [http://voices.washingtonpost.com/ezra-klein/2009/11/is\_the\_individual\_mandate\_cons.html](http://voices.washingtonpost.com/ezra-klein/2009/11/is_the_individual_mandate_cons.html) > [@](#): > > Before we get started down this road, yes, the individual mandate is constitutional. For a roundup of the argument, see this Tim Noah piece. For a longer, more technical explanation, see this post by law professor Erik Hall. > > The summary is that you can look at the individual mandate as a tax, which is constitutional, or as a regulation forcing private actors to engage in a certain transaction, much like the minimum wage, which is also constitutional. I’ve also heard scholars mention auto insurance, which is an obvious analogue, and the Americans With Disabilities Act, which proved that the government can order businesses to install ramps, despite the fact that the constitution doesn’t explicitly give the federal government jurisdiction over entryways. > > It’s also worth noting that Massachusetts has had an individual mandate on the books for a couple of years now. Its constitutionality remains unchallenged. And back in June, Grassley himself supported an individual mandate in health care. “I believe that there is a bipartisan consensus to have individual mandates,” he told Fox News. He didn’t add, “and to rip up the Constitution!” His colleagues Bob Bennett, Lamar Alexander, Norm Coleman, Bob Corker, Mike Crapo, Lindsey Graham, Judd Gregg and Trent Lott have also come out in support of an individual mandate, as they all co-sponsored Ron Wyden’s Healthy Americans Act, which includes one. The constitutionality of the mandate has not been in question among Republicans. But some of them are getting a bit desperate. ---
**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, 6:20pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/80 "2010-03-22T18:20:28Z")
> [@Diogenes\_the\_Cynic](#): > > No one is required to buy anything. Some of them just lose a tax credit if they don’t. It’s no different than tax credits for college tuition or home buyers. The bill imposes a penalty. It does not provide a tax credit. If Obama wants to raise taxes on certain individuals he needs to call it what it is. AFAIK it is not called a tax. [Previous page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=3) [Next page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=5)