Healthcare Reform Individual Mandate: Constitutional?

In the context of our national Healthcare Reform debate, an “Individual Mandate” means that every individual will be required to buy health insurance (helped by a subsidy if necessary due to low income) or pay a tax penalty. The idea is that expanding the risk pool to include more healthy people will lower total costs, but many object to the insurance industry being handed a captive audience of new customers – to which proponents respond: eliminating preexisting condition exclusions isn’t economically feasible for the insurance industry without an individual mandate, because people will simply wait until they get sick to buy insurance. To which single-payer advocates respond: why do we need an for-profit insurance industry when it comes to health care!?

Without going further round the cobbler’s bench with the individual mandate and related arguments, let’s skip on to the issue of whether or not the individual mandate is constitutional. You may have received an email along the lines of the following:

The Truth About the Health Care Bills
– Michael Connelly, Ret. Constitutional Attorney

Well, I have done it! I have read the entire text of proposed House Bill 3200: The Affordable Health Care Choices Act of 2009. I studied it with particular emphasis from my area of expertise, constitutional law. I was frankly concerned that parts of the proposed law that were being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.

The irony is that the Congress doesn’t have any authority to legislate in most of those areas to begin with! I defy anyone to read the text of the U.S. Constitution and find any authority granted to the members of Congress to regulate health care.

If you decide not to have healthcare insurance, or if you have private insurance that is not deemed acceptable to the Health Choices Administrator appointed by Obama, there will be a tax imposed on you. It is called a tax instead of a fine because of the intent to avoid application of the due process clause of the 5th Amendment. However, that doesn’t work because since there is nothing in the law that allows you to contest or appeal the imposition of the tax, it is definitely depriving someone of property without the due process of law.

I was forwarded this email, and asked how, considering this argument, an individual mandate could possibly be constitutional? I responded in part that:

Constitutional arguments are complicated, and typically a passable argument can be articulated for either side of an issue. The Connelly argument represents a certain point of view … and it is by no means authoritative.

The foregoing isn’t really a good example of a meritorious opinion, because you really shouldn’t trust any of the “please-forward” political emails you receive – there just isn’t any pressure on their authors to be accurate, and often they are not. However, there are more professionally crafted opinions circulating in Conservative legal circles arguing the same point.

Today I found the other point of view, boiled down by constitutional law professor Jack Balkin on his blog – a summary of a longer analysis he had published in the New England Journal of Medicine. You can read his summary here.

From what I have heard and read, I have to agree with Balkin. It would be extremely surprising for the Supreme Court to find any major aspect of Healthcare Reform unconstitutional.