The constitutional case against individual health mandates

The key to barring health insurers from denying applicants with pre-existing conditions, as Democrats and a fair number of Republicans in Congress say they would like to do, is to mandate health-insurance coverage. Otherwise, a large number of Americans might make the calculation that it would be cheaper to forgo insurance until they contracted a disease that was expensive to treat. This is one part of the health-reform debate that transcends the public option question, because it’s unlikely that either private insurers or the government could afford to accept customers with pre-existing conditions if there were no mandate.

But can Congress lawfully issue such a mandate? David Rivkin and Lee Casey, two former Justice Department officials from the Reagan era, argue here that it can’t. Rivkin and Casey speculate that Congress would cite its (often misused) power to regulate interstate commerce to justify issuing a mandate — or, more precisely, a high excise tax on uninsured Americans designed to coerce them into buying insurance:

But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a “tax” that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule were otherwise, Congress could evade all constitutional limits by “taxing” anyone who doesn’t follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.


Since the 1930s, the Supreme Court has been reluctant to invalidate “regulatory” taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power will present the question whether there are any limits on Congress’s power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care.

Rivkin and Casey may or may not be correct about what the Supreme Court might do — which would of course depend heavily on which justices are serving at the time of any future legal challenge to any future insurance mandate; that’s a lot of conditionals. But they are correct that the Court cannot uphold such a mandate without also agreeing to a serious, and probably irreversible, expansion of the federal government’s power.

24 comments Add your comment


September 18th, 2009
2:38 pm


You are kidding yourself to think that our federal government is even PRETENDING to follow the constitution.

These guys will only yield to expediency. They owe alot of yen.


September 18th, 2009
2:46 pm

This may turn out to be an important point. You would need someone with standing I would guess and that would mean someone who just paid the tax. So this may be an after the fact case.

I am an observer of the Court but not an attorney. My reading is that the Roberts court is not afraid to expand federal power. Legislating from the bench has become something of a norm for this court. I can easily see them using the “rational basis” test & giving a thumbs up to a tax on the uninsured.

My 2 cents.

Michael H. Smith

September 18th, 2009
2:51 pm

They probably will use the commerce clause, Kyle. We honestly disagree about this court, the Robert’s court, legislating from the bench, jconservtive. At least thus far.

Michael Honohan

September 18th, 2009
3:09 pm

I certainly hope jt is not pointing fingers at any one party on this. The Republicrats have been erroding our constitution for decades now.

I must say I agree whole heartedly on this. I can deal with some socialism, that is NOT in conflict with the Constitution and we practice “socialism” in many ways and have been before Marx wrote anything. So while the right scared us all off any kind of public option with its cries of SOCIALISM (and maybe that was the left’s plan all along, the right is simplistically predictable these days), they have served us something worse. As libertarian, it goes against my grain to be told I have to buy something. This is different the liability insurance where the idea to protect other citizen from your negligence. I will not be forced to buy insurance. I will not pay a fine. They will have lock me up.

But in the end, I feel vindicated. I have said all along this is just a ploy to fatten the accounts of the insurance industry. Socialism my ass! No one gets into power in this country without money. Most of the money in politics from the banks, the insurance companies, and Wall Street. If you don’t back the captialist system, they don’t back you.

So to right I say, keep up with your Obama is Socialist while all along he is selling you behind your back to the people who want to pervert and corrupt our free enterprise system for their own gain at our detriment. That is worse than a socialist.


September 18th, 2009
3:24 pm

Does this mean we can now declare Car Insurance to be Unconstitutional!!
Yeah! I mean that is the most blatant violation of my right to be irresponsible. Ya hooo!!

Ps – I love the sponsorship of your article by Insurance provider State Farm!

Kyle Wingfield

September 18th, 2009
3:40 pm

Jan: Of course not. Auto insurance is mandated by states, not the federal government. The Constitution delegates authority, and it delegates a limited number of powers to the federal government…as opposed to state governments. That is the entire point here. Of course, if all Americans were more knowledgeable about the Constitution, we would have a lot fewer problems than we do now…

As for “sponsorship,” by which I assume you mean the advertisements that run on our Web site, those are randomly assigned. I’m getting ads for The Wall Street Journal, and AT&T at the moment.

I’m not exactly sure how it works on, but online ads very often have more to do with the user than with the content or content provider.


September 18th, 2009
3:43 pm

Enter your comments here

Michael Honohan

September 18th, 2009
3:09 pm

“I certainly hope jt is not pointing fingers at any one party on this. The Republicrats have been erroding our constitution for decades now. ”

Hardcore libertarian here.

I point no finger. The right can argue about the unconstitutionalality of forcing health-care upon us while,at the same time, use the interstate commerce clause to punish weed smokers. The idea is as silly as the lawyers who argue the cases.

As far as the socialism comment, I am aware of the corruption and perversion of free enterprise(or what is left of it). Still…..
Socialism or Fascism is the correct term for our political system at this point in time.

It is quite interesting from a socialogist’s point of veiw, why so many statists love the concept of socialism but will not admit to being one.


September 18th, 2009
3:53 pm

Thanks for aticle Kyle! I’ve been trying to bring this issue to light for awhile.

David Axelfraud

September 18th, 2009
4:06 pm

Since when has our government officials kept to the constitution?


September 18th, 2009
4:12 pm

Actually, I have been considering things along the same lines. It would mean that, for the first time in history, everyone in the U.S. would have to fork over some amount of money every year just because they are a citizen. Homeless man on the street? He is required to have health insurance or pay a fine. Orphaned child? She is required to have health insurance or pay a fine. And if you don’t buy insurance or pay a fine? Do you go to jail? If so, people could go to jail for being chronically poor and not having the mental aptitude or address to seek out government assistance and get on a plan somewhere.

More importantly, this would be the first individual mandate of its kind that forced you to pay up to live at any level of society. “I couldn’t get insurance because I am poor, and am mentally incapable of knowing what to do, I live far away from help even if I knew how to get it, and now I am going to jail because I cannot pay a fine.”…. it will never pass the Supreme Court of the United States.


September 18th, 2009
4:14 pm

Kyle is missing the most important part of his own argument… the small fact that if you don’t want to pay auto insurance if you don’t want to… you have to simply choose not to own a car.

Kyle Wingfield

September 18th, 2009
4:19 pm

rdh: That’s a perfectly good point, but I’m not sure that it’s the one that a Supreme Court case would turn on.

Hillbilly Deluxe

September 18th, 2009
5:14 pm

people could go to jail for being chronically poor and not having the mental aptitude or address to seek out government assistance and get on a plan somewhere

Sort of sounds like debtor’s prison, doesn’t it?

the small fact that if you don’t want to pay auto insurance if you don’t want to… you have to simply choose not to own a car.

Or you could go to plan B like many do, just drive without insurance. Happens everyday.


September 18th, 2009
6:13 pm

Thanks for article, Kyle. I certainly cannot afford an extra “tax” right now and would refuse to pay it even if it was made law!

Michael H. Smith

September 18th, 2009
6:19 pm

Funny how mandated health insurance is objectionable but mandated medical treatment isn’t?

Strange how government imposing mandating health insurance, called a Public Option on someone is acceptable under the constitution, while government imposing mandating someone buys health insurance for themselves – forcing individual responsibility upon someone – it is thought deplorably unconstitutional.

Mandating personal irresponsibility is constitutional, mandating personal responsibility is unconstitutional?

What is still amazing is how Big Pharma which is more profitable than health insurers in the healthcare industry of this country gets a wink and a nod while insurance companies are branded the supreme culprits and BIG FEDERAL GOVERNMENT as usual is deemed as the only supreme savior.


September 18th, 2009
7:04 pm

Well this is scary.

If the rule were otherwise, Congress could evade all constitutional limits by “taxing” anyone who doesn’t follow an order of any kind

I’m not very good at following orders, Kyle. As a matter of fact it’s my nature to rebel against them.

So in order to get what it wants (public option) the WH has to give the insurance company what they want – our young people at any cost and THAT on top of all the debt they’ve been burdened with?

John McCain was right…this is generational theft.

So I guess we better be lookin’ to overturn Roe v Wade. We’ll be needing duplicates.

I thought Obama was a constitutional lawyer of great import.

Michael Honohan

September 18th, 2009
7:05 pm

Funny thing about cries of Socialism. If you talk to a real Socialist, you will find the not even the most leftist agenda of the Democrats even fills on single plank of any socialists party platform. Zero. Zilch. Its like calling the Right wing conservatives Christians. Nothing in their agenda has a single thing in common with what Jesus taught. Socialists are insulted by the accusation.

I have posted this before and so will again. From the conservative web site Human

The gist of this site is the “Case Against Obama”, but these guys want you to understand why conservative should oppose him. Socialist nonsense may fire the true believers, but it does the oppositve for people who could be convinces. Like with conspiracy theorists, the reality is often worse than the fables.


September 18th, 2009
8:14 pm

Bringing the music to the man.

Hillbilly Deluxe a gentle man by anyone’s standards.

Kyle’s next column was tailor-made for your wisdom but I wouldn’t advise you to linger. ‘Ya know how it goes ’round these here AJC parts.


Michael H. Smith

September 18th, 2009
8:29 pm

Dictionaries are so useful in debunking liberal mis-speaking and serial exaggerations.


A political theory advocating state ownership of industry.

An economic system based on state ownership of capital.


September 18th, 2009
11:58 pm

There are four main fronts — philosophical, constitutional, economic, and pragmatic — in the war against the collection of health care reforms I have dubbed as PelosiObamaReidCare (PORC). Most of what we read about in the media concern skirmishes on the economic and pragmatic fronts.

It is refreshing to see articles like this one covering the constitutional front.

Conspicuous by its absence is coverage of the philosophical front.

We at Doctors on Strike for Freedom in Medicine believe that the outcome on the philosophical front will ultimately determine who wins the war.

Statists will continue to exploit the loopholes in our Constitution (Commerce Clause, General Welfare, etc.). These loopholes won’t be plugged until our Constitution is amended or is reinterpreted by a newly constituted Supreme Court. I for one am not holding my breath.

In any event, each of these fixes would require a significant shift in the moral, social, and political philosophy that dominates our political discourse. The effectiveness of any constitutional fix ultimately depends on the effectiveness of the philosophical justification for this fix.

And this dependency requires us to focus more attention to the philosophical front where battles are being fought between opposing sides in the fields of moral, social, and political philosophy — between an alliance of ideas supporting liberty — rational egoism, individualism, and laissez-faire capitalism — and an alliance of ideas supporting coercion — altruism, collectivism, and statism.

The United States was founded on the idea individual rights. Our founding documents are imbued with the moral philosophy of principled self-interest and the social-political philosophy of individualism — the theory that individuals are ends-in-themselves; that each one of us owns our own life; that each one of us has the right to exist for our own sake; that no one has the right to force anyone to live for the sake of others; that each one of us has the right to be left alone to pursue our own ends in life as long as we don’t infringe on the liberty of others to do the same; that we should deal with one another by voluntary means; that the proper role of government is to protect our rights by legislating, adjudicating, and enforcing laws that prohibit other individuals or groups — foreign and domestic — from initiating force against us.

Our founding documents did not openly embrace the moral philosophy of altruism and the social-political philosophy of collectivism — the theory that the interests of the collective (tribe, church, monarchy, Aryan nation, proletariate, society, “public interest”, etc.) take priority over the interests of each individual in it; that the individual has value only insofar as he or she serves the collective; that the proper role of government is to subjugate the individual to the collective; that the government is entitled to own, use, and dispose of the land, the means of production, personal property — even the lives of individuals, as necessary, to promote the welfare of the collective.

The major battle on the philosophical front concerns the alleged right to health care. We would not be engaged in this national debate on health care reform if the majority of Americans were clearly opposed to this alleged right.

The constitutional argument is often effectively used to defeat health care right advocates. One line of attack is this: Search long and hard, but you won’t find any “right to health care” in the Declaration of Independence, Constitution, or Bill of Rights.

But when intellectual push comes to intellectual shove, the battle has to be joined on the philosophical front.

A so-called “right to health care” demands that some (the wealthy, business owners, doctors, other health care providers) be forced to serve the health care needs of others. This follows the Marxist doctrine, “From each according to his ability, to each according to his need.”

The use of government force to enforce a “right to health care” on behalf of some would necessarily violate the rights to life, liberty, and the pursuit of happiness of others. This doesn’t make any logical, moral, or political sense. The end — universal health care — does not justify the means — the most massive violation of individual rights in the history of our country.

Any so-called “right” that violates our inalienable rights to life, liberty, and the pursuit of happiness is a virulent virus once injected into the body politic. How does a localized infection of statism not become a systemic one? Where does it end?

If you buy into the altruist claims that there is a moral imperative to help people in need, that you have a moral obligation to help people in need, that you are your brother’s keeper, that people in need have a right to be helped, that people in need are morally entitled to your help, that depriving them of help is just evil — then you are morally disarming yourself and can’t fight very effectively for liberty in health care.

If you can argue that people have to take responsibility for their own health care, that those who are unable to do so must rely on charity, that throughout history fellow citizens, doctors, and business owners have practiced the virtue of benevolence, that they will continue to help people in need, but that forcing them to do so at the point of a gun is immoral — then you are morally armed to fight effectively for liberty in health care

Dr. Gregory Garamoni
Doctors on Strike for Freedom in Medicine


September 19th, 2009
12:29 pm

It was hilarious to see dems invoking morality into the health care debate. Up until now, legislating morality was a no-go.

Michael H. Smith

September 20th, 2009
7:47 am

You cannot legislate morality, though, it has been often tried the efficacy of these moral efforts have proven dismal at best. As free-moral agents only the “free will” of the individual can subjugate a moral authority upon the soul.

David Axelfraud

September 20th, 2009
5:49 pm

Kyle, we need more Stephen A Smiths. This guy is a liberal democrat turned Conservative.

John Jonik

September 21st, 2009
9:50 pm

We hear many explain that Compulsory Patronage of Private Health Insurance is no different forcing drivers buy private insurance.

Note that barely any legislators or mainstream news sources dare say “Buy insurance” or “purchase” it, or “patronize..” private insurers. They virtually all say things in non-monetary terms like “carry insurance” or “get…” it or “have…” it or something. “Money” is clearly a Four Letter Word. Why the embarrassment? Maybe those using such terms believe the public would not approve if it was worded clearly. That’s not democratic, is it?

In any case, when states pushed compulsory auto insurance down drivers’ throats, officials took pains to explain that it WAS Constitutional for one really cynical reason…that “no one is compelled to drive”.
That justified what would otherwise have violated Constitutional prohibition of Compulsory Speech.
Sure—some speech can be compelled.—like with income taxes, doctors required to report child abuse and bullet wounds, grand jury things, and some others….But for everyonei n the country to be forced, by law, to patronize private insurers—to Speak To them with words and money— is an unprecedented giant step.
It’s bad enough that our compulsory tax money is taken and given to private industries… military contractors, oil drilling subsidies, grazing for almost free, and on and on….but we, the people, are not required by law to purchase, say, military protection from Cuban or Venezuelan or French invaders.

In the auto insurance area one can Opt Out by just not owning a car. Walk to work or to tend sick and elderly relatives and so forth. Use wheelbarrows or sleds to get your groceries home from the store. No problem.

BUT….in the Health Insurance area, to opt-out—to exercise your right to remain silent—one would have to renounce citizenship and leave the country, commit suicide—or deplete assets to get below the low-income level to get the SAME private-administered insurance paid for by EVERYONE’S income taxes.
Yep. Those who buy their own private insurance, if they pay income taxes, would be paying the insurance industry TWICE…once for their own coverage, again for their fellow countrymen…and women.

Then…consider that the money is NOT just going to your health care. About a THIRD of it goes to things that have nothing to do with health care or the Public Interest. It goes to redundant administration, CEO bonuses, advertising, lobbying, campaign gifts (to YOUR choice of candidates?), conventions, and even lawn care and brass polish at Corporate Headquarters.
How THAT can be a Public Interest justification to require Mandates to give money to those industries is a question.

And…regarding auto insurance…if, as it’s said, the mandatory purchase of auto insurance “services” is in the Public Interest, it must be The Public as a whole that pays…via progressive income taxes….as we do to be protected from that Cuban Invasion or from the dark threat of hemp agriculture, and whatnot.

NB: In this area many seem to forget that The Government IS We, the People. So…to ask to get government off our backs is to ask that We, the People, be included OUT of decision making over our own lives and welfare. It is to ask that Private Corporate interests, with motive and duty to take as much of our money as possible and to provide as little as possible in return, take over.

Where have all the psychiatrists gone? There sure are plenty of customers.