# 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:** 9
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 23, 2010, 1:39am UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/161 "2010-03-23T01:39:28Z")
> [@Damuri\_Ajashi](#): > > I hear you but the answer is still “probably” The federal government taxes all sorts of things that impose social costs, everything from sin taxes to gas guzzler taxes. Like i said, the power to tax is pretty broad, in fact the power to do just about anything is pretty broad. Well, look at your examples. They are instances where an object is taxed but those are not the same as imposing a tax on the basis someone did not purchase something. To be sure, Congress can tax objects in an effort to deter conduct, i.e. keep the people or deter them from purchasing something (recall the Whiskey tax which caused a stir in the early Republic.) However, I am not sure of the answer here because there isn’t any case law in existence directly settling this question that I am aware of anyway. From my understanding of the taxing power, and I rely upon original meaning, this is not a power within Congress’ power to tax in Article I. To address the 16th Amendment, which was referenced in a prior post. The 16th Amendment does not settle the question for us. The 16th Amendment is not a grant of power Congress did not generally already possess. As the Court said in _BRUSHABER v. UNION PACIFIC R. CO_., 240 U.S. 1 (1916), the power to impose an income tax is a power Congress possessed before the passage of the 16th Amendment. Therefore, the 16th Amendment does not confer a power Congress did not already possess generally. "_the whole purpose of the Amendment was to relieve all income taxes when imposed from apportionment from a consideration of the source whence the income was derived_. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [March 23, 2010, 4:27am UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/162 "2010-03-23T04:27:10Z")
> [@ghardester](#): > > No one is ever going to be charged with a fine for not having health insurance. It will not happen. The language is in the bill so that the overall costs would pencil out before the vote. The true costs of the program would have outraged and alienated some supporters. With the threat of a fine, fictional money from fines can be added in to lower the cost of the program. > > The fines and penalties will be quietly dropped once the bill becomes law. There will be no court challenge because there will be no fines, only an increase in the cost of the program buried in the federal budget. Massachusetts enacted a very similar health insurance reform in 2006 (without a lot of the cost control measures). The penalties went into effect in 2007 or 2008. It happened. It’s in effect. This is the plan that was in many ways the model for the current bill. They’re not lying about the penalties, they’re an integral part of the plan. ---
**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 23, 2010, 1:14pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/163 "2010-03-23T13:14:38Z")
I continue to think very carefully about this issue, but one similar question arose in my mind this morning: if the commerce clause is sufficient constitutional authority to require all Americans to buy health insurance, is the commerce clause also sufficient to require all Americans to buy guns? ---
**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, 1:21pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/164 "2010-03-23T13:21:40Z")
> [@Lobohan](#): > > It’s an unscientific poll. You might as well cite an internet poll or ask the guys at a line-dancing class what they think. > > If that poll is correct, it’s by accident. You are knowingly pointing to a worthless poll to bolster your case. Why don’t you have any real information you can point to? > > You are the one asserting that there will be a mass doctor retirement in response to HCR. You are the one required to back that up with more than wishful thinking. OK, I’m going to go ahead and ignore you from now on, no offense. All you do is scream and rant with circular arguments and childlike accusations. To the rest on this board: **Lobo** has problems with this poll because it was: a) done by mail :rolleyes: b) done by a business magazine c) didn’t come out how the hardcore lefties wanted it to :smack: Anyway, the poll is instructive, take a look at the link, it’s [here](http://www.investors.com/NewsAndAnalysis/Article.aspx?id=506199). There are about 800k doctors in America, they did a random sample of 1300 by mail. It showed that a whopping 45% would consider retirement if the healthcare bill passed. All of the so-called ‘flaws’ that graspers like **Lobo** have clung to are listed in the brief article, you can read them for yourself and judge it’s worthiness appropriately. But not to threadjack too much… the point is, there will be many unintended consequences from this bill. This represents one. ---
**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 23, 2010, 1:28pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/165 "2010-03-23T13:28:38Z")
> [@Mr\_Smashy](#): > > OK, I’m going to go ahead and ignore you from now on, no offense. All you do is scream and rant with circular arguments and childlike accusations. > > To the rest on this board: **Lobo** has problems with this poll because it was: > > a) done by mail :rolleyes: > b) done by a business magazine > c) didn’t come out how the hardcore lefties wanted it to :smack: > > Anyway, the poll is instructive, take a look at the link, it’s [here](http://www.investors.com/NewsAndAnalysis/Article.aspx?id=506199). There are about 800k doctors in America, they did a random sample of 1300 by mail. It showed that a whopping 45% would consider retirement if the healthcare bill passed. All of the so-called ‘flaws’ that graspers like **Lobo** have clung to are listed in the brief article, you can read them for yourself and judge it’s worthiness appropriately. > > But not to threadjack too much… the point is, there will be many unintended consequences from this bill. This represents one. The point is you are citing as evidence an unscientific poll. You might as well cite an online internet poll, or the opinions of your circle of friends. The poll is an anecdote. That you don’t understand this is clear. It almost seems like you’d rather \*seem \*right than \*be \*right. The poll is flawed and no one who wants to be taken seriously would draw real world conclusions from something that is essentially background noise. I just think that it bears repeating that you have no problem posting something again and again that has no actual merit, just as long as it supports your pre-conceived notions. You are pretending that the poll is something that proves a point. ---
**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, 1:31pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/166 "2010-03-23T13:31:02Z")
> [@Ravenman](#): > > I continue to think very carefully about this issue, but one similar question arose in my mind this morning: if the commerce clause is sufficient constitutional authority to require all Americans to buy health insurance, is the commerce clause also sufficient to require all Americans to buy guns? Yes. ---
**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 23, 2010, 1:35pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/167 "2010-03-23T13:35:36Z")
Since I had a minute before getting ready… Politifact’s take on Smashy’s silly poll: > **[Beck says 45 percent of physicians would quit if health reform passes](https://www.politifact.com/factchecks/2009/oct/15/glenn-beck/beck-says-45-percent-physicians-would-quit-if-heal/)** > > Physicians are important players in the health care debate. They've been courted by both supporters and opponents of the > [@](#): > > So, back to Beck’s statement. First, he misstated the results of the poll. The survey didn’t say 45 percent would quit; it said they would consider quitting, which is considerably different. Moreover, polling experts have raised significant questions about the poll’s methodology. Of special concern are the combination of the heavy mention of IBD ‘s name and questions that experts said appeared to be seeking answers critical of health reform. We’d like to see an independent poll assessing doctors’ views of health care reform, but neither the findings from the IBD survey nor those from the Keyhani-Federman study are fully persuasive to us. We rate Beck’s statement False. And Five Thirty Eight’s take: [http://www.fivethirtyeight.com/2009/09/ibdtipp-doctors-poll-is-not-trustworthy.html](http://www.fivethirtyeight.com/2009/09/ibdtipp-doctors-poll-is-not-trustworthy.html) > [@](#): > > My advice would be to completely ignore this poll. There are pollsters out there that have an agenda but are highly competent, and there are pollsters that are nonpartisan but not particularly skilled. Rarely, however, do you find the whole package: that special pollster which is both biased and inept. IBD/TIPP is one of the few exceptions. ---
**Author:** ![kingbighair](https://avatars.discourse-cdn.com/v4/letter/k/13edae/32.png) [@kingbighair](https://boards.straightdope.com/u/kingbighair)\ **Post date:** [March 23, 2010, 1:58pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/168 "2010-03-23T13:58:14Z")
> [@Ravenman](#): > > I continue to think very carefully about this issue, but one similar question arose in my mind this morning: if the commerce clause is sufficient constitutional authority to require all Americans to buy health insurance, is the commerce clause also sufficient to require all Americans to buy guns? This is a great question. The way the statute is worded, it seems the government is trying to say controlling health care costs is a legitimate government interest. I wonder if on challenge, the Court would carve out some compelling governmental interest narrowly tailored type language seen in other jurisprudence. If that’s the rationale, mandating guns would likely not be permissible. Otherwise, I think you have a point and the government could. ---
**Author:** ![Honesty](https://avatars.discourse-cdn.com/v4/letter/h/f04885/32.png) [@Honesty](https://boards.straightdope.com/u/Honesty)\ **Post date:** [March 23, 2010, 2:02pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/169 "2010-03-23T14:02:46Z")
> [@kingbighair](#): > > From the bill, for the record:Quote: > (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. **kingbighair** wins the thread. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 23, 2010, 2:15pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/170 "2010-03-23T14:15:03Z")
> [@Ravenman](#): > > I continue to think very carefully about this issue, but one similar question arose in my mind this morning: if the commerce clause is sufficient constitutional authority to require all Americans to buy health insurance, is the commerce clause also sufficient to require all Americans to buy guns? I raised similar queries in the first or second pages of this thread regarding the purchase of books, cars, food, and so forth. Congress was not originally vested with any authority under the commerce clause to make us purchase anything. Congress could make us purchase homes, a particular kind and type of car, certain foods, clothing, and so forth. ---
**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, 2:34pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/171 "2010-03-23T14:34:09Z")
Is the problem here that Congress is requiring the purchase rather than the States, or is it that government is requiring the purchase? Because we allow governments to require purchases already, especially if we have children. Just those tend to be done at the state level. ---
**Author:** ![kingbighair](https://avatars.discourse-cdn.com/v4/letter/k/13edae/32.png) [@kingbighair](https://boards.straightdope.com/u/kingbighair)\ **Post date:** [March 23, 2010, 2:35pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/172 "2010-03-23T14:35:30Z")
> [@villa](#): > > Is the problem here that Congress is requiring the purchase rather than the States, or is it that government is requiring the purchase? > > Because we allow governments to require purchases already, especially if we have children. Just those tend to be done at the state level. Option number 1. ---
**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, 2:37pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/173 "2010-03-23T14:37:38Z")
OK - so there is general acceptance that the government can require a purchase, just the question is which level of government. Sorry to be repetitive, but I have gotten a little confused. ---
**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 23, 2010, 2:39pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/174 "2010-03-23T14:39:22Z")
> [@Bricker](#): > > Yes. I’m curious how you got to that conclusion. ---
**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, 2:44pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/175 "2010-03-23T14:44:04Z")
> [@NotreDame05](#): > > I raised similar queries in the first or second pages of this thread regarding the purchase of books, cars, food, and so forth. Congress was not originally vested with any authority under the commerce clause to make us purchase anything. > > Congress could make us purchase homes, a particular kind and type of car, certain foods, clothing, and so forth. This was almost exactly the thoughts I had in the posting about N Dakota. Here’s the text of that post, in response to **Bricker’s** thoughts that the CC is stretched beyond recognition.: * * * Do you not see any line crossed between the regulation of commerce and the requirement for mandatory engagement of commerce, constitutionally? I agree that Congress has stretched the Commerce Clause well beyond what it was supposed to do, trying to use it to regulate violence against women and other claptrap (not that I condone violence against women, you get my gist here). In 1995, US v Lopez, the Supremes overturned a Gun Free School Zone law, which relied on Commerce Clause, as a bridge too far: > [@](#): > > To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local… This we are unwilling to do From my perspective, the power to regulate does NOT equal the power to mandate. Or to put another way: would it be constitutional to pass a law requiring all American citizens to buy a car from GM? If not, why not? What’s the difference, constitutionally speaking? ---
**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 23, 2010, 2:50pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/176 "2010-03-23T14:50:21Z")
I haven’t looked at the bill or the individual mandate much, but in the short bit of research I did, it appears that the law is structured as a tax. That is, if you don’t have adequate health care coverage, you will be taxed at a certain rate or assessed a certain penalty tax. Kinda like the the penalty taxes imposed for late payments to the government, polluters who don’t meet environmental requirements, or the “substantial penalty for early withdrawl”. I don’t quite see it as a problem under the Constitution. ---
**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, 2:55pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/177 "2010-03-23T14:55:16Z")
> [@Ravenman](#): > > I continue to think very carefully about this issue, but one similar question arose in my mind this morning: if the commerce clause is sufficient constitutional authority to require all Americans to buy health insurance, is the commerce clause also sufficient to require all Americans to buy guns? > [@Bricker](#): > > Yes. > [@Hamlet](#): > > I’m curious how you got to that conclusion. Because of this: > [@Hamlet](#): > > I haven’t looked at the bill or the individual mandate much, but in the short bit of research I did, it appears that the law is structured as a tax. That is, if you don’t have adequate health care coverage, you will be taxed at a certain rate or assessed a certain penalty tax. Kinda like the the penalty taxes imposed for late payments to the government, polluters who don’t meet environmental requirements, or the “substantial penalty for early withdrawl”. I don’t quite see it as a problem under the Constitution. And _Sonzinsky v. U.S._, 300 U.S. 506 (1937): > [@](#): > > Every tax is in some measure regulatory. To some extent, it interposes an economic impediment to the activity taxed, as compared with others not taxed. But a tax is not any the less a tax because it has a regulatory effect, United States v. Doremus, supra, 249 U. S. 93-94; Nigro v. United States, 276 U. S. 332, 276 U. S. 353-354; License Tax cases, supra; see Child Labor Tax cases, supra, 259 U. S. 38, and it has long been established that an Act of Congress which, on its face, purports to be an exercise of the taxing power is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed. 75 U. S. 548; McCray v. United States, 195 U. S. 27, 195 U. S. 60-61; cf. Alaska Fish Co. v. Smith,@ 255 U. S. 44, 255 U. S. 48. > > **Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts.** Veazie Bank v. Fenno, supra; McCray v. United States, supra, 195 U. S. 56-59; United States v. Doremus, supra, 249 U. S. 93-94; see Magnano Co. v. Hamilton, 292 U. S. 40, 292 U. S. 44-45; cf. Arizona v. California, 283 U. S. 423, 283 U. S. 455; Smith v. Kansas City Title Co., 255 U. S. 180, 255 U. S. 210; Weber v. Freed, 239 U. S. 325, 239 U. S. 329-330; 10 U. S. 130. **They will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution**. McCray v. United States, supra; cf. Magnano Co. v. Hamilton, supra,@ 292 U. S. 45. (emphasis mine) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [March 23, 2010, 2:55pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/178 "2010-03-23T14:55:52Z")
> [@Hamlet](#): > > I haven’t looked at the bill or the individual mandate much, but in the short bit of research I did, it appears that the law is structured as a tax. That is, if you don’t have adequate health care coverage, you will be taxed at a certain rate or assessed a certain penalty tax. Kinda like the the penalty taxes imposed for late payments to the government, polluters who don’t meet environmental requirements, or the “substantial penalty for early withdrawl”. I don’t quite see it as a problem under the Constitution. Yes, that’s what I read in the paper today. But is that really a tax? I mean you can call it a tax, but I can call my dog a cat, too. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [March 23, 2010, 3:14pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/179 "2010-03-23T15:14:27Z")
> [@Hamlet](#): > > I haven’t looked at the bill or the individual mandate much, but in the short bit of research I did, it appears that the law is structured as a tax. That is, if you don’t have adequate health care coverage, you will be taxed at a certain rate or assessed a certain penalty tax. Kinda like the the penalty taxes imposed for late payments to the government, polluters who don’t meet environmental requirements, or the “substantial penalty for early withdrawl”. I don’t quite see it as a problem under the Constitution. Well, the tax, if we want to call it a tax, is a mechanism used to enforce the mandate language in the statute. There is the mandate, which requires all people to have health insurance, and then there is the penalty for failing to comply with this mandate, and the penalty is the tax. I do not think the mandate is constitutional. Now, is the tax used as a penalty constitutional? First, this is a tax which is different from other taxes mentioned in this thread. The examples of taxation in this thread have been in regards to a tax imposed upon some good or service. This is not a tax imposed upon any good or service. Rather, this is a tax imposed upon the individual on the basis the individual failed to purchase a particular kind of good. Can Congress impose a tax to induce people to purchase a particular product? ---
**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, 3:16pm UTC](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349/180 "2010-03-23T15:16:51Z")
> [@NotreDame05](#): > > Can Congress impose a tax to induce people to purchase a particular product? “Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts.” [Previous page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=8) [Next page](https://boards.straightdope.com/t/is-the-individual-mandate-to-purchase-health-insurance-constitutional/533349.md?page=10)