The Proposed Health Care Individual Mandate

There is a lively discussion underway (on Volokh and in some op-eds) about whether a federal statute requiring all Americans to buy health insurance would be constitutional under the Commerce Clause.  I’m interested in this question because I’m now revising a draft paper on the “30,ooo foot” view of the Obama Administration in political time.

One feature of prior constitutional generations (or new party systems) in their initial phase is that there is often a clash between a rising movement and the Supreme Court over a key demand of that movement. Jackson and Marshall fought over the Cherokee Removal.  Dred Scott attacked the Republican Party over slavery in the territories.  And the Old Court in the 1930s went after the NRA.  It is pretty clear that health care is the crucial issue for President Obama.  The obvious question is how could the Court challenge that initiative (if enacted) consistent with existing doctrine?

My faculty colleague, David Orentlicher, and I batted around the following idea today.  Congress clearly has broad authority to prohibit harmful commercial transactions.  It also has similar power to regulate transactions that occur. But does it follow that Congress can require people to engage in a commercial transaction that they do not want  to undertake?  (Like buying health insurance).  I’m not so sure.  Are there any precedents for this?  I don’t think so. Conscription is a possibility, but that’s a weak analogy.  Nothing else comes to mind.  Can you think of any examples of federally-mandated commerce?  (Obviously, if Congress just encourages people to buy insurance through tax breaks, then this analysis would not apply.)

Of course, nothing in the “substantial effects” test distinguishes between prohibition, regulation, and requirement.  I’m just saying that such a distinction could be made and would be plausible.

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18 Responses

  1. Larry Rosenthal says:

    An example in which Congress forces people to engage in a commercial transaction?: If you want to work in a business affecting interstate commerce, you must engage in forced saving through the Social Security program.

    Larry Rosenthal
    Chapman University School of Law

  2. Gerard Magliocca says:

    Hi Larry,

    Presumably, though, Social Security is a regulation of a transaction — an employment relationship. Attaching a condition to a transaction could be distinguished from requiring an unwanted transaction. Or Social Security could be characterized as a tax. Is requiring people to buy health insurance just a tax? Could be, but not necessarily.

    This may just be hollow formalism. What’s interesting to me is that it sounds like the kind of formalism that led to the invalidation of the federal income tax in Pollock. Past might be prologue.

  3. Larry Rosenthal says:

    Hi, Gerard:

    As I (imperfectly) understand the proposals in play, the mandate rests on a legal theory quite like that which supports Social Security. The mandate is imposed in the form of a tax that one must pay unless one has engaged in a form of forced saving by enrolling in a health plan through one’s employer or, if one is unemployed, through Medicaid. In other words, if you want to work in a job affecting interstate commerce, you must engage in forced saving for future medical expenses by obtaining insurance, or else pay a tax that will offset the government’s costs for caring for the uninsured. This doesn’t seem terribly different to me than Social Security or, for that matter, Medicare, in which those working in jobs that affect interstate commerce are taxed to offset what would otherwise be the costs of providing medical care to the aged, without being given a choice about whether to enroll in the program.

    As for Pollack, my take is that for at least eight Justices on today’s Court, Pollack is rather a dirty word. Chief Justice Hughes called Pollack one of the great self-inflicted wounds in the history of the Court. I don’t think that too many of today’s Justices stand to the right of Chief Justice Hughes.


  4. Gerard Magliocca says:

    So I agree that this can be structured in a way through taxation that avoids any constitutional problems (or at least makes such a claim really hard to maintain). This is why I normally don’t like trying to assess unwritten bills. But I couldn’t resist this time.

    And I didn’t mean that the Court would cite Pollock. I just mean that everyone thought a federal income tax was constitutional in 1894. Then a new theory was developed in the midst of a generational fight that led five Justices to come out the other way in 1895. That sort of thing could happen again.

  5. Adam says:

    I am 90% sure that to obtain and hold a pilot’s license from the FAA, one must contract for insurance coverage. The STB probably requires truckers to purchase liability insurance as well. I am not saying that such requirements are directly analogous, because they are obviously distinguishable, but they are examples in which Congress (or a federal agency) forces people to engage in a commercial transaction.

  6. Scot Boyd says:

    Vehicle and gun licenses are voluntary. The individual mandate requires anyone with a heartbeat to pay a fine (or buy insurance, but I bet no insurance plan will be cheaper than the fine).

    As a layman, I don’t understand how it could possibly be legal. Even a state-run system like Canada’s seems more in line with our idea of liberty.

  7. Jessica Mantel says:

    Georgetown’s O’Neill Institute has a series of papers that addresses legal issues in health care reform. A paper by Mark Hall discusses the individual mandate issue (he concludes that there are no constitutional barriers to an individual mandate).

  8. Managing Board says:

    What if you think of it as a capitation?

  9. Prof says:

    Great con law final exam question.

  10. anon says:

    I think any chance a challenge to such a mandate will have a lot to depend on the facts of the individual challenging the law. Raich had this perfect (but still lost, of course) with a woman who grew her own weed for her own state-allowed use. Here you would need some backwoods/hippie person who never contracted/used medical professionals of any kind and didn’t want to (the fear is if he/she, say, at times visits a doctor’s office and pays cash then the mandate could just be a way to “regulate” such visits, rationally-related/necessary and proper with broader insurance regulation). Such a person (I’ve run into a few in my day . . .) perhaps might have a claim that he/she does not use medical professionals, has no interest in doing so, and is therefore not connected to interstate commerce in health care. Of course mandating that he/she buy insurance does connect him/her to interstate commerce, but that’s cheating (or is it? discuss).

    A smart Congress and President would write-in a Lopez-style jurisdictional hook that would exempt the few people out there who fit this bill. Such as, has not seen a medical professional since age 18, or some such thing. Not that the mandate probably would be struck-down in such a case, but there’s a fighting chance. Then the few libertarians/menonites/hippies (or all the above) out there who live this way can not pay the mandate (which will have the tiny effect upon the system of paying about one and a half congressional salaries) and the Obama Administration can call themselves good federalists. It’s a win-win!

    What about Christian Scientists, you might ask? (There are many thousands of them in the country, and they don’t use medical professionals.) I’d say that most of them work jobs where they already have FICA deducted from paychecks for, ostensibly, their future medicare, and the mandate could be similarly justified. In the above I’m talking about a challenger who really doesn’t participate in the FICA system, so the mandate is just about the only way the person would get into the “system.” That’s why you’d need a real libertarian backwoodman/menonite/hippie.

  11. Joe says:

    Christian Scientists in various cases would have some sort of medical costs — they believe in vaccines, some set broken legs, get some treatment for communicable disease, their minor children would be required to get some care, and so forth. I assume as well they have some sort of ‘wellness center’ that might be akin to hospital care too.

    And, who is being forced? Isn’t the idea that if you don’t buy in, you have to pay a tax? Big deal. If you have a child, you have to pay education taxes, but don’t have to go to public school. And, if you don’t have insurance, there is a free rider problem — emergency care is required, even if you can’t pay.

    Why isn’t this “mandate” brought up too?

  12. anon says:


    You’re probably right, just trying to provide a glimpse of a chance or a commerce clause challenge.

  13. simon lazarus says:

    These attacks on the proposed individual mandate seem to me to conflate “federalism” or “states’ rights”-based challenges to the scope of Congress’ “necessary and proper” power to implement the interstate commerce clause, on the one hand, with libertarian — i.e., presumably, substantive due process — based objections to the idea of a mandate to purchase health insurance. But it is hard to see that a state law-imposed individual mandate could be constitutionally questioned on substantive due process grounds; indeed, has Massachusetts’ mandate been challenged on this basis? After all, most states impose an auto insurance mandate, along with, as noted above education and other taxes. And as far as the commerce clause is concerned, it is difficult to imagine any subject-matter more inextricably linked to the national economy than health care and health insurance in particular. The government also has a powerful claim that the individual mandate is necessary to protect its own and the taxpayers’ resources.

  14. Interesting discussion. I stumbled upon this site by checking out the link on the SCOTUS site and became intrigued by it. I am a non-lawyer type civilian self-employed businessperson. In my humble opinion, the mandate is troublesome from a philosophical perspective , yet necessary when you consider that the collective welfare of the country depends on everyone contributing to society in some way, shape or form. That is why insurance works as a communal savings vehicle. But the when you draw the “mandate” line in the sand , do you also erect an unpenetarable wall of depriving access to that system between those that do not contribute and those of us that do contirbute. It would seem that if you impose the mandate and someone chooses not to participate then the penalty should be the denial of access to the system and not a financial penalty. That kind of system then raises doubts about us morally as a country.

  15. Kim says:

    This whole issue makes me mad! Who are they to force me to buy insurance? I don’t even go to the doctor, yet I have to buy insurance that I am not going to you use! There should be an opinion to opt out such as pay out of pocket for medical expenses which is what I do now. If something extremely bad happened to me, such as cancer, heart attack, or head trama, I have elected to let nature take it course as I don’t trust surgeries and drugs. They just creep me out. If I die, I die! I am not a religious person, but I am not afraid of death. It’s going to happen eventually, insured or not.

  16. mtumba djibouti says:

    I completely agree with Kim (11/8). I find the mandate an outrageous federal intrusion into our natural rights as autonomous beings. If we cannot make decisions about our own bodies, how can we possibly consider ourselves as free citizens? I, too, am very dubious about contemporary medicines – both pharmaceuticals and physical care. I, too, am comfortable knowing that if I get cancer, so be it. I do not want conventional cancer care with toxic “medicine” that kills the cancer – and the patient. What’s next – a mandate to accept an organ transplant – and to pay for it, too?

    I wouldn’t deny anybody else the choice of these services if they choose, but I’m also outraged at the prospect of being forced to pay for something I won’t use and am spiritually opposed to for my own body. A health care mandate is completely inconsistent with individual liberty.

  17. It seems to me that the ‘Christian Scientist-hippie’ agrument has more potential than might first appear to be the case. There is no logical, philosophical, or religious grounds for seeing healthcare services as an all-or-none issue. Some people believe, as a matter of genuine conscience, that naturalistic medicine is moral, but more aggressive, technology-intensive forms of medicine are not. If this were merely a specious argument that people invoked to avoid paying for health insurance, that would be one thing; but plainly some people do genuinely believe this. Consider an analogy: a Native American might sue the government for the right to use peyote cactus in religious services, without challenging the right of the government to control use of amphetamines. A second analogy: a person might claim status as a conscientious objector to avoid conscription in some wars, but not others.

    As a counter-argument the government might claim a logistical need for uniform enforcement, as it has when prosecuting groups who claim a religious right to use drugs. But then the government would have the burden of proof to demonstrate that its policy is the ‘least restrictive means’ necessary to secure its interests. That is, it would need to prove it is not feasible to accommodate religious or philosophical beliefs concerning limited use of medical procedures.