Why a Personal Mandate in Health Care Bill is Unconstitutional

By December 10, 2009Health Care, Taxation

Health care bills in both the House and Senate require individuals to purchase health-care coverage if they are not covered through some other program, a “compulsory contract.” In a new Legal Memorandum from the Heritage Foundation, Randy Barnett, Nathaniel Stewart and Todd F. Gaziano explain “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional”:

The purpose of this compulsory contract, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize coverage for others as well as an industry saddled with other government costs and regulations. Congress lawfully could enact a general tax to pay for these subsidies or it could create a tax credit for those who buy health insurance, but that would require Congress to “pay for” or budget for the subsidies in a conventional manner. The sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or–through the gimmick of unconstitutional taxes or penalties they dub “shared responsibility payments”–make these transfers appear to be revenue-enhancing.

This “personal responsibility” provision of the legislation, more accurately known as the “individual mandate” because it commands all individuals to enter into a contractual relationship with a private insurance company, takes congressional power and control to a striking new level. Its defenders have struggled to justify the mandate by analogizing it to existing federal laws and court decisions, but their efforts do not withstand serious scrutiny. An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented– not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.

Defenders argue for the mandate by saying, “Well, you have to buy auto insurance to drive,” a false comparison demolished by the authors. The Heritage paper also addresses Commerce Clause and Taxing Clause issues and concludes that the Supreme Court would be unlikely to uphold legislation that included the mandate.

News coverage of the admittedly mind-bogglingly complex, thousand-plus page health care bills has mostly kept away from the personal mandate issue, save for some discussion of the Massachusetts precedent. These important questions of Constitutionality and liberty deserve more attention.

UPDATE (9:35 a.m.): Via The Volokh Conspiracy, a Heritage video of Sen. Orrin Hatch (R-UT), Barnett and Eugene Volokh on the unconstitutionality of the health care mandate. (Hat tip: Glenn Reynolds.)

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