• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Is The Individual Mandate Constitutional?

    We’ve already identified some possible constitutional issues Obamacare raises including whether the delegation of power to the “Health Choices Commissioner” violates the separation of powers and whether a government run health plan is one of the enumerated powers granted to Congress. David Rivkin and Lee Casey also have constitutional concerns. Their Washington Post op-ed argues the individual mandate would not pass muster:

    President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals. Consider one element known as the “individual mandate,” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

    In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

    Read their whole argument, here.

    Posted in First Principles [slideshow_deploy]

    19 Responses to Is The Individual Mandate Constitutional?

    1. Ozzy6900, CT says:

      Better question….

      Is mandating Health Care or Insurance Constitutional?

    2. Jeff Radovich, cente says:

      Just another step towards the inevitable evolution in this Country of Socialism. Read about what other countries that subscribe to socialized medicine are doing for good care – The Brits and Canadians have been flocking hear in droves to get what they need and can't obtain in their own Country. What happened to freedom of choice? Do you really think the goverment is capable of handling this – just look at the current state of medicare and Social Security to name two.

    3. Michelle, Colorado says:

      The esteemed Harvard proffessor does not realize he is trampling all over this document? I think he knows exactly what he is doing, he hates that esteemed document. Without respect for the constitution we are doomed… that is what holds us together. If we relied on our "good" human nature we would have died along time ago.

    4. Denise johnson, West says:

      With all the smoke and mirras, the window dressing, What lawyer could'nt help himself for totally taking down a country. I ask you this Now that Mr. Obama has your attion and you have traded you working car for that nice shine new car that you won't be able to pay for in the next 6-months, do you have buyer remorse? And the dealer-ships that have taken your trad in and try filing the paper work, and it's never right, do you think they will be paided? Yes America you have been had! And the said part is you don't know what to do about it. Do you? When are you going to take it to the suprem court, or even start out in the lower leaves. Were do you Start? to get back were you belong?

      I pray a lot because the one sure thing in this life is that there is a god a just god. And just maybe we are now to witness the truth, and not be fooled again.

    5. Susan, Missouri says:

      Our nation was not designed to be a nation of government co-dependent people. We were called to be self-sufficient and it is that intended determination toward self-reliance that works most congenially with our Constitution and the Bill of Rights as given by the founders. The conflict that our present administration is having is they are trying to force a social welfare state to work within a framework not engineered to embrace it, nor which would allow it to be successful for any distant period of time.

      I think Michelle from Colorado is right in one respect, that Mr. Obama DOES know EXACTLY what he's doing and that in order for forced dependence on the government to be instilled and exist the Constitution and Bill of Rights must be done away with. It is my prayer Mr. Obama will not be successful in any effort he has in this respect. We must be mindful that Mr. Obama did not pay such particular attention to and become so well-versed in constitutional law without reason.

      I believe that providing for the poor among us is the responsibility of Christ's church, as commanded by Him, whether with respect to health services, food, clothing, shelter, or other matters. The government's involvement and input are unneeded and grossly unwelcome.

      I disagree with Michelle from Colorado with respect to her view that dependence on "good" human nature may be detrimental to the nation. It is exactly that compassion for our fellow man in times of need, without the usurping of his individual rights and responsibilities to pursue life to his own benefit, often having unintended benefit also for his fellow man, that was the hallmark of previous generations. Under a socialistic or fascist regime where human life is but a number in a ledger and one's usefulness is determined only by one's ability to produce tangible goods or provide services, that mankind is at greatest risk of losing its soul entirely and where "good" intentions and inherent goodness in human nature are stifled for they do not serve the purposes of the rulers but are seen to undermine their authority and the need for them.

      We were created to serve and worship God, in truth, and counseled against serving the whims and follies of men driven about by worldly obsessions. We would do well to remember that at all times.

    6. J.C. Hughes, Texas says:

      Jeff R. of NY is absolutely on target. Creating individual mandates is the genesis of socialist control. It's the antithesis of individual freedoms as set forth by the U.S. Constitution. Congress and the administration are walking a very perilous line. As a military veteran, I took an oath to defend our nation's constitution against foreign and domestic aggression. Never did I dream that the latter would be today's elected elitists who swore the same oath.

    7. J.C. Hughes, Texas says:

      To define my earlier comment "…I took an oath to defend our nation’s [founding principles of individual freedom]…" To do otherwise is treachery.

    8. Hohonuuli, CA says:

      "President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals."

      You commenters are missing the point. It is widely recognized that our (US) health care system is broken. Obama wants to change it and is looking at many many different ideas to fix they system. Some our good, some are not. If mandating everyone to have health care is deemed unconstitutional it will not fly. Trying to push a plan with questionable constitutionality will open it to numerous legal challenges and shut down the 'plan' if it's deemed unconstitutional. Our elected officials know this, as most are lawyers, and they don't want to try to push a plan that will spin around in court for years. Give your elected officials a little credit for having some brains.

      Also, responding to another comment above, Brits and Canadians are not flocking here. They get excellent care in their own country. However, the US does have some of the best specialists in the world because a) specialist doctors here can make a LOT of money and b) the US has a far larger population and can support more specialists. So they do travel here to take advantage of these specialists. On the flip side, the US Fee-for-Service method of paying physicians favors specialists over primary-care physicians, so it's harder to get good primary care in the US (See http://www.gao.gov/new.items/d08472t.pdf)

      Trying to frame the health care debate as 'socialism' does nothing to solve the problem of health care in the US

    9. J.C. Hughes, Texas says:

      Myth: "The healthcare system in the U.S. is broken" Such is leftist demagoguery. What the supporters of Obama's plan don't understand is nothing's for free. Workers will pay far more of their earnings in healthcare taxes than for private healthcare insurance. Not so say the leftist who believe folks should hand everything over to government who'll in turn take care of them all their days. This is pure fantasy, the dangerous type that leads nations into subjugation. Not only are we too large a country for such a brainless plan, we're not socialist. At least not yet. To say these elected officials should be trusted because they're smart lawyers is hilarious. No one accused them of being stupid. Misleading yes, not stupid.

    10. Bobbie Jay says:

      Hohonuuli, CA,

      Sorry to break it to you, but you are missing the point. There has always been health insurance available to those that choose to have it. The government states it to be a "crisis" it's a down right lie. Unfortunately, you and millions of others fell for it. I've worked with many people who chose not to pay for the companies benefit of health insurance, either they just chose not to have it or getting it free through the state. This was suppose to be a temporary benefit that has caused the government made crisis as those that get HEALTH INSURANCE AT TAX PAYERS COST, WOULD RATHER NOT MAKE IT A PRIORITY TO PAY FOR THEIR OWN.

      if every American took on their OWN PERSONAL RESPONSIBILITIES UNDER THE FREEDOMS OF THIS COUNTRY, WHICH MEANS, AT THEIR OWN COSTS, THIS COUNTRY WOULD BE STRONG AND HEALTHY AND CAN ENDURE ANYTHING.

      The government is MANDATING EVERYONE have it which removes that freedom of choice and introduces, BY SPECIAL INVITATION, SOCIALISM.

      Those that don't have health care sure seem to be pretty healthy as there is but a few who allowed themselves to be PUBLIC VICTIMS for whatever bribe the government offered them.

      There is only corruption in everything being run by government. WHY WOULD ANYBODY INSIST AND ENABLE MORE?

      take care of yourself and anybody else who is yours and then buy what you CAN.

    11. Grady, Sammamish, WA says:

      The means by which the mandated health care coverage is enforced is a tax on any person who does not obtain coverage through a QHBP: yet that tax would affect specific individuals regardless of income or worth: as far as I can tell, this is a Capitation Tax – which is specifically forbidden by the Constitution (Section 9, 4th sentence).

      Hohonuuli, CA misses a significant point: even the chair of the committee that wrote HR3200 has publicly stated that he has not read it, and can't understand it! Assuming that just because DC is populated with lawyers means that bills will be well-considered is to ignore their own public statements.

      The reason for using the term "socialism" is simply that the label fits – and expresses in one word the overall effect of HR3200 – yet another arrogation of the average citizen's freedoms.

    12. Charles, The Republi says:

      I have downloaded a copy of AAHCA09 aka America's Affordable Health Choices Act of 2009 & I am attempting to read it. It is not easy. Now, I definitely appreciate the work that The Heritage Foundation does. This 1018 page monstrosity will definitely give you a headache & a desire to "cane" liberal lawyers. For individuals like Hohonuuli, "fixing" the system is easy. Only 3 things need to be done. First, control Immigration (illegals are draining the system, no more free ride). Second, Tort reform. (Get the lawyers out). Third, follow the Constitution. (Gets the politicians out). There is no Charity in the Constitution, it comes from you, if you have a moral compass. Make no mistake this is a Socialist bill & Socialism is nothing more than slavery. This bill is all about control! Read it!!

    13. Concerned, Raleigh says:

      Well said Charles =).

    14. Pingback: » Financial News Update - 08/25/09 NoisyRoom.net: Where liberty dwells, there is my country…

    15. Leo P. Indiana says:

      Face it Individual Mandate is a tax.

      You are forcing young people who are healthy to give money to the government insurance company/cartel/cabal/co-op take your pick, so that it can be given to old geezers like me that aren’t sick enough for my doctor to give up and "cash out" on me by getting me to sign my own DNR form. The plans working their way through the sausage grinder are only half truths. They may not mandate item "A" but it doesn’t exclude item "A" either. Its typical mealy mouth political speak. The key is what turds get dropped in during Conference Committee.

      Point two is that the "Health" Bill will also be subject to all the other lunacy laws on the books. It doesn’t have to say it will cover illegals because we already have a law that covers them in Emergency Rooms, look up the Emergency Medical Treatment and Active Labor Act.

      In the end this is bad legislation created by self serving hacks to undermine a working system, rushed to completion under the guise of a ginned up "emergency" justified by half truths, innuendo, and bald faced lies. And still the legislators can't fathom why people are upset. It reminds me of a story that goes something like this: The Admirals wanted 6 battleships the President said only three, so the Legislature voted for 18.

    16. Pingback: Is The Individual Mandate Constitutional? «

    17. Pingback: Constitutional Questions are Serious Questions | Fix Health Care Policy

    18. Pingback: The Absurd Report » Constitutional Questions are Serious Questions

    19. Pingback: Constitutional Questions are Serious Questions | The Foundry: Conservative Policy News.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×