Insurance: Is a mandate constitutional?

Can Congress make you buy health insurance? said Jacob Sullum in the Chicago Sun-Times. Attorneys general of 14 states have already filed legal challenges to the “individual mandate” in the Democrats’ new health-care law, which in 2014 will require anyone who doesn’t have health insurance to purchase a policy or face a financial penalty. Democrats say they need to spread the costs of universal coverage over as many people as possible, but forcing people to buy a product from a private company is unprecedented in U.S. history—and may be unconstitutional. Don’t be surprised if the Supreme Court strikes down the mandate, said Randy E. Barnett in The Washington Post. The Constitution’s commerce clause empowers Congress to regulate interstate economic activity, but says nothing about “economic inactivity”—the decision not to purchase health insurance. If this absurd law stands, Congress could demand that every household buy a gun, to cut down on crime, or buy a Chevrolet, to help Detroit.

Actually, there is no mandate, said Jack Balkin in NYTimes.com. Wisely, Congress is giving the uninsured a choice between buying health insurance and paying a tax “roughly equal to the cost of health insurance.” As a tax, the so-called mandate is legally bulletproof, because it’s unquestionably constitutional for Congress to impose taxes for the general welfare. Just ask Republican Mitt Romney, said E.J. Dionne in The Washington Post. As Massachusetts governor, he crafted and championed that state’s current health-care plan based on an individual mandate. Since hospitals and government are obliged to pay for the medical care of people without insurance, Romney explained, those people are “free riders” on a system supported by taxpayers—and thus, deserve to pay a penalty.

So what happens if people defy the new mandate? said Ezra Klein in WashingtonPost.com. “Not much.” When the new system is fully operational, the fine for going without insurance will be $695 a year or 2.5 percent of income, whichever is higher. That’s a pittance compared with the thousands of dollars a policy would cost; and since insurers won’t be allowed to deny coverage for pre-existing conditions, healthy people could pay the penalty year after year and still buy insurance the moment they get seriously ill. So even if the mandate passes constitutional muster, it may prove to be “too weak”—not too “onerous.”

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up