The Constitutionality of Health Reform’s “Individual Mandate”


As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift.  Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that individuals have health insurance coverage or subject themselves to financial penalties (the “individual mandate”).  Virginia, Idaho, and Utah are the only states thus far to have enacted new statutes (each of which more or less prohibits compliance with any law that imposes a fine on an individual for declining to enter into a contract for health insurance coverage), and their validity is sure to be challenged in court on Supremacy Clause and other grounds.  Idaho has also passed a non-binding resolution “urging Congress to take action forthwith to amend the United States Constitution by adding a Twenty-eighth Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program.”

Most dramatic, though—if drama is measured by the amount of media coverage generated—is the lawsuit initiated by the Attorney General of Florida and joined by 19 other state Attorneys General maintaining that several components of the health reform law violate Article I of and the Tenth Amendment to the U.S. Constitution.  The argument that is drawing the most attention concerns the constitutionality of the Act’s individual mandate.  Like the contention at the heart of the state proposals, the Florida lawsuit argues that the Act’s requirement that individuals have health insurance coverage or pay a tax penalty amounts to an unconstitutional mandate that cannot be upheld under the Constitution’s Commerce or Spending Clauses.

The lawsuit seems unlikely to ultimately succeed, given the procedural and substantive hurdles it has to clear.  Before the merits of the states’ arguments can be addressed, the courts have a series of procedural questions with which to grapple: Is Massachusetts v. Mellon, which holds that states do not have standing to challenge the constitutionality of federal laws, controlling?  If not, is the lawsuit ripe, given that the individual mandate is not effective until 2014?  If ripe, does the federal Tax Anti-Injunction Act, which as a general matter prohibits courts from entertaining lawsuits seeking to enjoin the government from assessing a tax, bar the relief the states seek?


The states would appear to have an uphill battle substantively, as well.  Their lawsuit directly challenges two of Congress’s broadest powers—to tax for the general welfare, and to regulate interstate commerce.  The Supreme Court and lower federal courts have long accorded great deference to congressional decisions that a particular tax provides for the general welfare.  Similarly, the Commerce Clause has been the approved constitutional basis for many of the federal statutes passed over the last half-century.  At the same time, whether the clause can serve as the basis for a mandate to purchase a particular good is a novel issue.  For its part, the federal government earlier this week filed its first brief defending the legality of the individual mandate, essentially arguing that Congress can force people to buy health insurance because the decision to be uninsured has a broad economic effect.


With many states likely to eventually pass statutes or constitutional amendments contravening the individual mandate, and with the Florida lawsuit already in play, it will be interesting to watch as several geographically-diverse lawsuits percolate up through the federal courts, with judges across the ideological spectrum weighing in.  In the meantime, implementation of the Act is moving swiftly, with multiple federal agencies quickly designing proposed implementing regulations.

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