Selected Hot Constitutional Issues: The Constitutionality of the Individual Mandate Provision of the 2010 Health Care Act

President Obama signs the 2010
Patient Protection and Affordable Health Care Act

Section 1501 of the 2010 Patient Protection and Affordable Health Care Act requires all Americans, with just a few exceptions,
 to attain a minimal level of health care insurance or pay a penalty.

1.  Is the penalty imposed for failure to purchase insurance punishment for "an inactivity" and therefore outside of the reach of the Commerce Clause power of Congress which, arguably, reaches only "activities" affecting interstate commerce?

Government's Argument: 
Health care costs have a huge and growing effect on the national economy.  The government unquestionably has a right to attempt to control the negative effects on the national economy that flow from escalating health care costs.  The distinction between "inactivity" and "activity" suggested by opponents of the 2010 Health Care Act is a formal one (a test in which labels determine results) of the sort that has been rejected by the Court in numerous cases.  Instead, the Court should apply its empirical test and conclude that the failure of large numbers of individuals to purchase health insurance would undermine the government's goal of making health insurance available for all regardless of "pre-existing" health conditions that individuals might have.  Moreover, the power of Congress to regulate inactivity under the Commerce Clause has been upheld in the past, such as in decisions holding that Congress can regulate restaurant and hotel owners who chose not to serve African-Americans in violation of the 1964 Civil Rights Act.

Only by expanding the insurance pool to include virtually all Americans is it possible to end the practice of denying insurance to persons with pre-existing health conditions, and the individual mandate provision is a reasonable means to accomplish this legitimate goal. If there were to be a ban on denying insurance for pre-exising conditions without Section 1501, Americans would have an incentive to simply wait until they have a major health problem to buy insurance--leading to even higher premiums for everyone. Prior case law makes clear that the cumulative impact of the decisions of individuals should be considered in determining whether those individual decisions can be regulated under the Commerce Clause.  The decisions of individuals not to participate in the health insurance market substantially affects interstate commerce in much the same way as the individual decision of an Ohio farmer named Filburn to not sell some of his wheat in interstate commerce (and instead consume it on his own farm) affected the interstate market for wheat (Wickard v Filburn, 1942)(See also Gonzales v. Raich, 2005).  (The Court noted in Wickard that if numerous farm families consumed their own wheat, rather than buy the wheat in the market, the decrease in the demand for wheat would cause the price of wheat to fall--and the government had a legitimate interest in preventing that.) All  the government is required to show is that the means chosen by Congress is "rationally related to the implementation of an enumerated power" (U. S. v Comstock, 2010).

Opponents' Argument:  It is unprecedented for the federal government to impose penalties on individuals for failure to participate in a market.  (State laws requiring motorists to purchase insurance are, first of all, state laws and, second, apply only to people who choose to drive vehicles.)  Wickard (involving a penalty for home consumption of wheat) and Gonzales (involving regulation of home-cultivated and consumed marijuana) involved "self-directed affirmative moves" to engage in an activity, whereas Section 1501 reaches individuals who simply do nothing at all.   Perez v United States (1971) emphasized that the Commerce Clause allows Congress to "regulate activities that substantially affect interstate commerce" and this is just not an "activity."  The Court should adopt a categorical test that denies Congress the power to punish people for their decisions not to engage in commerce.

Other Questions Raised:

2.  Does the Health Care Act "commandeer" states' participation in the federal program and therefore violate the 10th Amendment?

3.  Is the penalty imposed on individuals for failure to purchase health insurance an unconstitutional tax?


Thomas More Law Center v. Obama (E. D. Mich.)(upholding law)
Liberty University v. Geithner (W.D. Va.)(upholding law)
Florida v. Department of Health and Human Services (N.D. Fla.)
Virginia v. Sebelius (E.D. Va.)(invalidating provision)

What Will the Supreme Court Decide?

Most commentators believe the U. S. Supreme Court will ultimately decide the question of Section 1501's constitutionality and that the Court will uphold the individual mandate provision.  The outcome of the case is, however, in genuine doubt.  If the Court's composition remains the same, it is clear that at least four justices (Breyer, Ginsburg, Sotomayor, and Kagan) will find Section 1501 to be a valid exercise of Congress's power under the Commerce Clause.  It is also highly likely that two justices (Thomas and Scalia) will find the provision to be unconstitutional based on their general understanding of the Commerce Clause and their votes in the recent case of United States v Comstock (2010), where they were the two dissenting justices in a case upholding the power of Congress to civilly commit certain sex offenders after they had completed their prison sentences.  The swing justices in this case will be Kennedy, Roberts, and Alito, with Anthony Kennedy the most likely of the three justices to vote to uphold the law.

Justices are likely to weigh the impact that a decision striking down a key provision of major legislation, hotly debated for years and the subject of bitter partisan debate, would have on the institution of the Supreme Court.  Such a landmark, ground-shifting decision would generate a more heated debate about the role of the judiciary than any decision since the New Deal years of the Roosevelt Administration.

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