The Constitutionality of Mandates to Purchase Health Insurance (key findings)

[The Straight Story]

The Constitutionality of Mandates to Purchase Health Insurance

Health insurance mandates are a component of many health care reform proposals, but a federal mandate requiring that individuals transfer money to a private party is unprecedented. This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise given such a mandate.

Key Findings:

*
There are no Constitutional barriers for Congress to legislate a health insurance mandate, as long as the mandate is properly designed and executed.
*
Congress has the authority to enact a health insurance mandate under the Commerce Clause of the Constitution, and via its authority to tax and spend for the general welfare.
*
If Congress wants states to implement health insurance mandates, it can use conditional spending or conditional pre-emption to create mandates at the state level.
*
The legal analysis presented is likely to endure, as the Supreme Court's interpretation of the relevant Constitutional issue appears stable.

The Constitution permits Congress to legislate a health insurance mandate. Congress can impose a tax on those that do not purchase insurance, or provide tax benefits to those that do purchase insurance.

This white paper is part of the Legal Solutions in Health Reform project. It was created by the O'Neill Institute for National and Global Health Law at Georgetown University. The project aims to identify practical, workable solutions to the legal issues that may arise in any upcoming federal health reform debate.

http://www.rwjf.org/healthreform/coverage/overcomingbarriers/product.jsp?id=38108

Personally I would say it is not constitutional because no matter how you twist it just existing will force you to pay a private company or be penalized. Read several papers on this AM - here are few more:

http://lawblogs.slu.edu/healthlaw/?p=601

http://www.healthreformwatch.com/2009/08/25/is-it-unconstitutional-to-mandate-health-insurance/
Mark Hall
Professor of Law and Public Health
Wake Forest University School of Law

---One person from last commented:

The Supreme Court’s rulings imply the commerce clause only provides Congress with powers directly relating to interstate commerce, not indirect. Health insurance falls short of direct impact, so it would fail to survive judicial review just as the Violence Against Women Act of 1994 did (US v Morrison). Even with all the supporting data, the Court was unconvinced.

Lack of insurance is even less direct as the mere fact someone lacks insurance does not mean they lack the means to pay for medical treatment they seek, and there is no constitutional guarantee that an individual will be provided with medical treatment for which they cannot afford. I see no case for lack of health insurance being directly related to interstate commerce. Imagine such a law passes and a case is brought up by an uninsured individual who has the means to pay for treatment. What defense can exist in that case? The majority is not allowed to take away the rights of a minority in the United States, and it only takes a single individual to overturn such a law.

[ixion]

1. I heard some loopholes mentioned

I will most certainly be taking advantage of one of them, one way or the other.

Mandated insurance is a windfall for insurance companies, nothing more.

[mmonk]

2. This bill will be unprecedented in that regard.