The Constitutionality of Mandates to Purchase Health Insurance
The O'Neill Institute for National and Global Health Law, Forthcoming
14 Pages Posted: 1 Feb 2009 Last revised: 9 Jan 2011
Date Written: January 6, 2011
Many proposals to reform health care finance and delivery require individuals or private employers to pay for private health insurance. This paper analyzes the constitutionality of such proposals. A direct and unconditional federal requirement for an individual to transfer money to a private party for health or economic purposes seems to be unprecedented. Thus, an individual (or employer) mandate to purchase private health insurance raises several possible constitutional issues.
Although the Constitution does not confer plenary powers over public welfare like those possessed by the states, a mandate to purchase health insurance appears to fall fairly readily within the current breadth of Congress's power to regulate interstate commerce. Also, if the sole means used to enforce compulsory insurance is the federal tax system, then this requirement would easily fall within Congress's broad powers over taxation. Moreover, under Congress's broad power to spend to promote the general welfare, it could require states to adopt an insurance mandate as a condition for receiving health-related federal funding. There are no plausible federalism objections to any of this as long as state and local governments are not required to purchase insurance for their own employees, but even that requirement appears to be consistent with current Supreme Court precedents.
Regarding individual liberties, there is no support in Supreme Court decisions for a Constitutional objection based on religious liberty, but a statutory objection might be made under the Religious Freedom Restoration Act (RFRA). Also, a plausible challenge might be made under the Takings Clause, but such a challenge is not likely to succeed. There is no solid precedent that applies the Takings Clause to mandated purchases of any kind, and several inconsistent precedents. Moreover, a Takings Clause challenge could easily be avoided by framing the mandate as a taxation provision (i.e., simply a tax benefit for complying or a tax levy for not complying).
These major contours of Constitutional jurisprudence appear to be secure. Still, challenges to some versions of compulsory health insurance would be possible. The safest versions - those least susceptible to challenge - would be mandates that: 1) contain explicit findings about effects on and in interstate commerce; or 2) are conditioned on federal spending or federal taxation; and 3) avoid state and local government employers; and 4) provide a religious exemption or exception from RFRA.
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