# 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:** 5
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [March 22, 2010, 6:23pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/81 "2010-03-22T18:23:44Z")
> [@Todderbob](#): > > Both of which have been expanded, greatly, over their original intent. So? I mean, really, so what? Is there something magical about the period from 1776-1804 that makes it “original” to the country & nation today & the opinions of the time more important than others? Christianity, of course, is 1700 years older. Englishness in a post-Conquest sense 700 years older. The English had been in America for over 150 years; but they wouldn’t get to my part of America for a while after–they hadn’t made it to the Mississippi yet! So the constitution changed. Fine. The question is, did it change for the better or for the worse? ---
**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, 6:24pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/82 "2010-03-22T18:24:44Z")
> [@Todderbob](#): > > Both of which have been expanded, greatly, over their original intent. The “original intent” is debateable, and not especially relevant in any case. I would also point out that both the 1st and 2nd Amendments have also been expanded beyond their most likely original intents. I doubt the framers intended to protect internet porn and selective fire rifles, but too bad for them. ---
**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, 6:25pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/83 "2010-03-22T18:25:06Z")
The WaPo is wrong in this case, as they are so often. It is most definitely NOT like the minimum wage; Fair Labor Standards Act dictates a min wage for those who choose to work. There is no choice in this bill. We’ve already proven in this thread that it’s oceans away from state mandatory car insurance bill. As for Massachussets: in my opinion, that’s OK because it’s a state doing it. It passes constitutional muster. ---
**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, 6:27pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/84 "2010-03-22T18:27:00Z")
> [@villa](#): > > The judicial system is not limited to the interpretation of the legislature as to where the constitutionality of a particular law may be found. I understand that. But they will analyze it under its purported authority. Do you think the commerce clause is enough? **BrightNShiny** suggested the Commerce Clause along with the 16th Amendment. ---
**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, 6:27pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/85 "2010-03-22T18:27:32Z")
> [@Diogenes\_the\_Cynic](#): > > Practically nobody will have to pay it anyway. Anyone making $200K a year is already going to have health insurance. Are you saying that anyone making less than 200K is not subject to this tax? Cite please. This seems to be saying something quite different, from the CNNMoney link cited above. > [@](#): > > Penalties for those who don’t get coverage: Like the Senate bill, the reconciliation bill would impose a financial penalty on most Americans who don’t buy health insurance. > > 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. > > The CBO estimates this provision would raise $17 billion over 10 years. ---
**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, 6:29pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/86 "2010-03-22T18:29:13Z")
> [@Diogenes\_the\_Cynic](#): > > 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. Rather difficult to show a negative in the context of this argument, which renders your demand I show it rather comical and non-sense. However, those asserting this mandate is constitutional have the burden of showing what provisions in the U.S. Constitution authorize Congress to exercise this kind of power and why. Furthermore, Congress’ power to tax is not without limits, so the claim Congress’ power to tax is broad, while true, is not some saving grace argument. ---
**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, 6:31pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/87 "2010-03-22T18:31:45Z")
> [@Diogenes\_the\_Cynic](#): > > The “original intent” is debateable, and not especially relevant in any case. > > I would also point out that both the 1st and 2nd Amendments have also been expanded beyond their most likely original intents. I doubt the framers intended to protect internet porn and selective fire rifles, but too bad for them. We’ve been in this debate before, Diogenes. In every instance, you’ve been shown willfully ignorant (if you insist, I can link the threads, but I’d rather not go significantly more off topic). Actually, neither the 1st nor the 2nd amendment have been expanded beyond their original scope, because their scope was all “Arms.” (Actually, it doesn’t matter because as of now, Selective Fire Rifles aren’t protected under the 2nd amendment, as the right to own them has been infringed.) ---
**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, 6:32pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/88 "2010-03-22T18:32:15Z")
> [@Contrapuntal](#): > > 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. It’s collected with income tax. It’s an income tax. Penal taxes are legal. It’s still functionally the same as a tax credit for rich people who buy health insurance, and there is no criminal penalty for not buying health insurance, so it can’t even really be called a “mandate.” It’s just a perfectly legal tax increase which is forgiven for those who buy health insurance. How many people making over $200K a year do you think don’t already have health insurance anyway? ---
**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, 6:33pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/89 "2010-03-22T18:33:07Z")
> [@kingbighair](#): > > I understand that. But they will analyze it under its purported authority. Do you think the commerce clause is enough? **BrightNShiny** suggested the Commerce Clause along with the 16th Amendment. I honestly don’t know. I haven’t looked at Commerce Clause jurisprudence in a long time, and I haven’t read the bill. I made a throw away suggestion earlier and then realized I hadn’t looked anywhere near enough into it. I doubt this White House would have placed so much emphasis behind it if it was not pretty certain it would pass SCOTUS muster. On the other hand, it could be involved in a big game of chicken with the Court. ---
**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, 6:33pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/90 "2010-03-22T18:33:30Z")
> [@Diogenes\_the\_Cynic](#): > > How many people making over $200K a year do you think don’t already have health insurance anyway? See my question above. It suggests a much lower threshold, and that the 200K figure is about something else altogether. > [@](#): > > Increase the Medicare tax on high-income households: The reconciliation bill’s changes to the Medicare tax represent the largest single revenue raiser in the health reform package. > > The CBO estimates the provision would raise $210 billion over 10 years. > > Currently, the Medicare payroll tax is 2.9% on all wages – with the worker and his employer each paying 1.45%. > > The reconciliation bill, like the Senate bill, would raise the percentage paid by high-income individuals by 0.9 percentage points, so an individual would pay 2.35% on his wages. > > The reconciliation bill, however, also would subject the investment income of high-income households, such as dividends, interest and rent, to a 3.8% Medicare tax. > > High-income is defined as individuals making more than $200,000 ($250,000 for couples filing jointly). ---
**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, 6:33pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/91 "2010-03-22T18:33:47Z")
> [@kingbighair](#): > > I understand that. But they will analyze it under its purported authority. Do you think the commerce clause is enough? **BrightNShiny** suggested the Commerce Clause along with the 16th Amendment. The 16th Amendment is the weakest of constitutional provisions to justify the mandate and the provision in the statute, if I recall it correctly, does not rely upon this amendment to justify its action. Rather, the legislation invokes the commerce clause and the famous "substantially affects commerce"as the basis for its authority to impose the mandate. As I said in a prior post, undoubtedly the “substantially affects commerce” language of \*Wickard v. Filburn \* would be relied upon to justify the Congressional mandate along with the power to tax and spend to promote the “general welfare.” ---
**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, 6:35pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/92 "2010-03-22T18:35:35Z")
> [@foolsguinea](#): > > So? I mean, really, so what? Is there something magical about the period from 1776-1804 that makes it “original” to the country & nation today & the opinions of the time more important than others? Christianity, of course, is 1700 years older. Englishness in a post-Conquest sense 700 years older. The English had been in America for over 150 years; but they wouldn’t get to my part of America for a while after–they hadn’t made it to the Mississippi yet! > > So the constitution changed. Fine. The question is, did it change for the better or for the worse? There actually does exist a very compelling argument for Originalism but probably does not belong in this thread. ---
**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, 6:40pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/93 "2010-03-22T18:40:16Z")
From the bill, for the record: > [@](#): > > (3) SUPREME COURT RULING.—In United States v. South-Eastern Underwriters Association (322 U.S. 9 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [March 22, 2010, 6:40pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/94 "2010-03-22T18:40:27Z")
RE: General power to act There are two (general) schools of thought: that the Federal government can do anything it wants as long as the Constitution doesn’t prohibit it; or that the Federal government can only do what the Constitution specifically empowers it to do. There is huge overlap between them (e.g., laws are grounded in one of the commerce clauses), but to insist in a debate that one or the other school obviously and totally reigns supreme is shockingly naive. A small shift in Justices could turn either approach on its head. Arguing past each other by insisting that a brute oversimplification of “it’s in/not in the Constitution so there!” is so grossly devoid of nuance and understanding (particularly in a heavily pragmatic thread) as to make the posts cotton-candy empty. RE: Constitutionality If I were to embark on writing a brief in support of the law, I would frame much of it as noted upthread — the Commerce and welfare clauses (I would argue) give the Federal government the power to act in the realm of health care reform. Something that seems to have been given short shrift is the notion of government coercion on a private party to purchase something from another private party. If this had come up during drafting, I daresay the reversing of the burden (e.g., “no, it’s a tax that you can avoid”) would have been a bit more explicit. But in addition to this line of argumentation, I would look to rationale in [Kelo v. City of New London](http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London), which among other things concerned the mandated transfer of private property between two non-governmental entities. Though distinguishable on some fronts, the precedent (recent precedent) of Constitutional permissibility, albeit on a state level, of this situation could bolster the claim that it is permissible—even absent tax/credit arguments—for the government to require that you provide a portion of your private property to another private entity because it furthers societal ends. (Oh, and please don’t FreeRepublic on the last sentence — yes, that is the road to socialism, blah blah blah, as is the government taking your private property to buy bombs from another private entity so the government can drop explosives on other countries.) ---
**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, 6:41pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/95 "2010-03-22T18:41:04Z")
> [@NotreDame05](#): > > The 16th Amendment is the weakest of constitutional provisions to justify the mandate and the provision in the statute, if I recall it correctly, does not rely upon this amendment to justify its action. Rather, the legislation invokes the commerce clause and the famous "substantially affects commerce"as the basis for its authority to impose the mandate. As I said in a prior post, undoubtedly the “substantially affects commerce” language of \*Wickard v. Filburn \* would be relied upon to justify the Congressional mandate along with the power to tax and spend to promote the “general welfare.” Correction…this should have read “perhaps the mandate could be justified under the 16th Amendment” and the language in the legislation itself does not foreclose relying on this amendment. My typo. ---
**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, 6:43pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/96 "2010-03-22T18:43:45Z")
I think I have the relevant language from the statute. \*\*SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE. `(a) Requirement To Maintain Minimum Essential Coverage- 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. `(b) Shared Responsibility Payment- `(1) IN GENERAL- If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c)..........`© Amount of Penalty- `(1) IN GENERAL- The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1/12 of the applicable dollar amount for the calendar year. `(2) DOLLAR LIMITATION- The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without regard to paragraph (3)©) for the calendar year with or within which the taxable year ends. `(3) APPLICABLE DOLLAR AMOUNT- For purposes of paragraph (1)– `(A) IN GENERAL- Except as provided in subparagraphs (B) and ©, the applicable dollar amount is $750. `(B) PHASE IN- The applicable dollar amount is $95 for 2014 and $350 for 2015. `© SPECIAL RULE FOR INDIVIDUALS UNDER AGE 18- If an applicable individual has not attained the age of 18 as of the beginning of a month, the applicable dollar amount with respect to such individual for the month shall be equal to one-half of the applicable dollar amount for the calendar year in which the month occurs. `(D) INDEXING OF AMOUNT- In the case of any calendar year beginning after 2016, the applicable dollar amount shall be equal to $750, increased by an amount equal to– `(i) $750, multiplied by `(ii) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year, determined by substituting `calendar year 2015’ for `calendar year 1992’ in subparagraph (B) thereof. If the amount of any increase under clause (i) is not a multiple of $50, such increase shall be rounded to the next lowest multiple of $50. `(4) TERMS RELATING TO INCOME AND FAMILIES- For purposes of this section– `(A) FAMILY SIZE- The family size involved with respect to any taxpayer shall be equal to the number of individuals for whom the taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year. `(B) HOUSEHOLD INCOME- The term `household income’ means, with respect to any taxpayer for any taxable year, an amount equal to the sum of– `(i) the modified gross income of the taxpayer, plus `(ii) the aggregate modified gross incomes of all other individuals who– `(I) were taken into account in determining the taxpayer’s family size under paragraph (1), and `(II) were required to file a return of tax imposed by section 1 for the taxable year. \*\* ---
**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, 6:48pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/97 "2010-03-22T18:48:49Z")
> [@Contrapuntal](#): > > Are you saying that anyone making less than 200K is not subject to this tax? Functionally, no, because those making less are eligible for federal subsidies and tax credits to help them buy insurance. Of course, those with _very_ low incomes are exempt altogether. ---
**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, 6:52pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/98 "2010-03-22T18:52:41Z")
This is interesting: > [@](#): > > More generally, the Roberts Court so far has not reversed a single Constitutional precedent nor has it struck down any laws for exceeding congressional powers. Therefore, a dramatic change in course does not appear likely. Justice Alito and Chief Justice Roberts are too new to the Court to reliably assess their views about these transformative ideas. However, the positions of Justices Kennedy, Scalia and Thomas are well established. Only Justice Thomas appears willing to accept many of the transformist positions about federal powers. Justice Kennedy’s positions are much more centrist on the extent of federal powers, and his judicial approach is more cautious about overturning established precedents.73 The views of Justice Scalia, who sometimes is more outspoken, merit more attention. > > There is good evidence that Justice Scalia is not likely to join or lead the transformist movement. He is firmly on record as opposing both the expansion of substantive due process and the radical retraction of interstate commerce jurisdiction. The scope of interstate commerce was the central issue in Gonzales v. Raich,74 which permitted the government to outlaw “medical marijuana” in California. Concurring, Justice Scalia interpreted Congressional power to reach even farther than recognized by the majority. He said that > > \*the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.\*75 > > \ > > Some reputable scholars have articulated coherent constitutional theories that might prohibit government from mandating health insurance,79 but these theories are inconsistent with prevailing constitutional jurisprudence, including that of Justices Scalia and Kennedy. Justice Scalia, in particular, is an intellectual leader among the judicial wing most concerned about expansion of federal powers. If he is not willing to embrace dramatic restrictions in federal powers or expansions in economic liberties, it is unlikely that these views will gain a majority footing in the Court any time soon. Therefore, the major outlines of constitutional law described in this paper appear to be stable. > > SOURCE: [http://www.law.georgetown.edu/oneillinstitute/national-health-law/legal-solutions-in-health-reform/Papers/Individual\_Mandates.pdf](http://www.law.georgetown.edu/oneillinstitute/national-health-law/legal-solutions-in-health-reform/Papers/Individual_Mandates.pdf) \<— Warning: 25 page PDF Lots more at that link which provides a thorough run down of the legal issues at question in this thread. Their overall analysis is that the HCR just passed in constitutional. ---
**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, 6:53pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/99 "2010-03-22T18:53:20Z")
> [@Diogenes\_the\_Cynic](#): > > Functionally, no, because those making less are eligible for federal subsidies and tax credits to help them buy insurance. > > Of course, those with _very_ low incomes are exempt altogether. You may be right, but would you mind pointing out where you got that 200K figure? Did you see my cite above? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [March 22, 2010, 7:01pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/100 "2010-03-22T19:01:13Z")
Those asserting broad powers to the government solely on the basis of the tax power are misguided - the Supreme Court pretty clearly stated that dressing up an unconstitutional end in the tax power won’t pass muster. See _U.S. v. Butler_. And while I will agree that a properly constituted health plan would be constitutional, I don’t believe one that prevents people from opting-out would be. This plan also has hidden Medicaid costs that the states have to account for - that is a potential issue as well. [Previous page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=4) [Next page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=6)