The Health Insurance Mandate — A Tax or a Taking?
65 Pages Posted: 5 Dec 2014
Date Written: December 3, 2014
The Patient Protection and Affordable Care Act (ACA) requires Americans to have or buy health insurance. The “individual mandate” was upheld in National Federation of Independent Business v. Sebelius, as an exercise of Congress’ tax power. While Congress often uses its tax power to reward desired purchases, it has never before imposed a tax for failure to buy. Some inactions can be taxed; others cannot (e.g., refusal to go to church). If there is a constitutional right not to consume private goods, a tax on those who decline might violate the Takings Clause.
NFIB did not address other constitutional problems with the mandate. This article explores whether a consumption mandate is a novel form of “taking,” and whether the option to pay a tax instead is a constitutional alternative. It is a close question and provides an opportunity to examine recent takings cases involving the imposition of monetary burdens.
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