This House believes that the United States’ individual health insurance mandate is unconstitutional.

It is unconstitutional to require individuals to buy private insurance, and penalize them for not doing so (that is, penalizing their non-act, their omission to purchase insurance). As David B. Rivkin Jr. and Lee A. Casey argue: “… 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.”(1)

The Congressional Budget Office believes “a mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”(2) An individual mandate would have two features that, in combination, would make it unique. First, it imposes a duty on individuals due to them being members of society. Second, it requires the purchase of a specific service on pain of tax penalties if that product is not purchased. (2)

As noted by Sen. John Ensign, a Nevada Republican: "Anything we have ever done, somebody actually had to have an action before we could tax or regulate it."(3) As Robert A. Levy and Michael F. Cannon of the CATO Institute argue: “Congress' attempt to punish a non-act that harms no one is an intolerable affront to the Constitution, liberty, and personal autonomy. That shameful fact cannot be altered by calling it health-care reform.”(4) The individual healthcare insurance mandate would, for the first time, mean the government setting uo a monopoly or a cartel with which every citizen of the US would be compelled- by a statutory power- to do business. This destroys any pretence of individual market freedom, individuals would be required to contribute money out of each and every pay check they earned to either a government entity which would be staffed and/or controlled by political appointees or to a cartel made up of companies that would owe their continued existence on the cartel list to the acquiescence of political overseers. Either way, the reduction in individual autonomy and freedom over health care choices would be dramatically decreased and inevitably politicized. This has obvious worrying possibilities for corruption, the party in power would favour those who donate to the party.(5)

Enforcing the mandate may also intrude on Constitutional rights. Sherry Glied, Ph.D., Assistant Secretary for Planning and Evaluation at the U.S. Department of Health and Human Services has warned, “[d]eveloping a system to promptly identify and penalize scofflaws [people who flout the law] will take effort and ingenuity, particularly in our diverse and mobile country. It may require a degree of intrusiveness and bureaucracy that some will find unpalatable.”(6)This is likely to mean much more intrusive inspection, for example hospitals having to report to the government patients they have who don’t have health insursnce..(6) This is why a majority of the states, and numerous organizations and individual persons, have filed actions in federal court challenging the constitutionality of the individual mandate, and several courts have already struck it down on constitutional grounds.(7)

For all these reasons it is clear that for Congress to try to penalize a non-act is an unprecedented and unconstitutional power grab, and so the individual mandate is unconstitutional.

The federal government mandates positive activities all the time, and this is why several courts have also upheld the constitutionality of the individual mandate.(7)

Regarding the charge that the individual mandate penalizes a 'non-action', Stephanie Cutter, an adviser to President Barack Obama, has argued: "Individuals who choose to go without health insurance are making an economic decision that affects all of us—when people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab."(7) Thus these people are not engaging in a 'non-action' but rather in an economic choice which has negative implications for other Americans, something Congress has the constitutional power to regulate under the commerce clause and the constitution's provision that Congress should promote the general welfare.

Many attorneys general have fought constitutionality of mandates. Since the passage of the legislation in March of 2010, many state governments, governors, and attorney generals have pressed forward with lawsuits centred on the idea that the individual mandate in the legislation is unconstitutional.(7) Underlying these legal challenges is a debate about the basis of the national Congress’s lawmaking powers. In order for laws passed by Congress to be considered legitimate and enforceable, those laws must be based on a power conferred on congress by the Constitution. On those areas of law and public life where the Constitution is silent, legislative power rests not in the hands of Congress, but rather is “reserved to the States respectively, or to the people.”(9)

It has been argued that the individual healthcare mandate is authorised by the Constitution's empowerment of Congress to “regulate interstate commerce” (known as the “commerce clause”), however this is not true and the commerce clause does not authorize health insurance mandates. As the Congressional Research Service has written: "Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance. Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.”(2) The most obvious reason for this is that an omission to buy health insurance can in no way be termed 'interstate commerce', as there is no activity or commerce going on. This is not in keeping with the commerce clause, unlike other previous federal healthcare laws.

There is no doubt that Congress can regulate an entire array of economic activities, large and small, inter- and intra-state. Thus, for example, there is no problem, Constitution-wise with having Congress regulate health care insurance purchase transactions. The problem with an individual insurance purchase mandate, however, is that it does not regulate any transactions at all; it regulates human beings, simply because they exist, and orders them to engage in certain types of economic transactions.(8)

While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual citizen who chooses not to undertake a commercial transaction. The decision not to engage in affirmative conduct is arguably distinguishable from cases in which Commerce Clause regulatory authority was recognized over intra-state activity: growing wheat, for example, (Wickard v. Filmore) or, more recently, growing marijuana (Gonzales v. Raich).(6)

If Congress were to invoke its Commerce Clause authority to support legislation mandating individual health insurance coverage, such an action would have to contend with recent Supreme Court precedent limiting unfettered use of Commerce Clause authority to police individual behaviour that does not constitute interstate commerce: United States v. Lopez, invalidating the application of the Gun Free School Zones Act of 1990 to individuals, and United States v. Morrison, invalidating certain portions of the Violence Against Women Act.

In the case of a mandate to purchase health insurance or face a tax or penalty, Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.(6) Therefore, it is clear that Congress is not empowered to regulate the choice not to buy healthcare, as it lacks constitutional authorisation to interfere in this aspect of individual Americans’ private lives.

A refusal to purchase healthcare insurance can have an effect on interstate commerce, because in shrinking the risk pool of insured the premiums would incrementally rise. In 2007, healthcare expenditures amounted to $2.2 trillion, or $7,421 a person, and accounted for 16.2% of the gross domestic product. These statistics leave no doubt that regulating health insurance is synonymous with regulating interstate commerce.(10)

Not engaging in economic transactions is a form of commercial behaviour that Congress can regulate. The Supreme Court held that Congress could require that hotels and restaurants provide services to African-Americans. Their refusal to engage in commerce still was deemed to be within the scope of Congress's commerce clause power.(10)

The likelihood is that everyone will require medical care at some point. An uninsured person in a car accident will be taken to the emergency room for treatment. An uninsured person with a communicable disease will be treated; indeed, it is necessary for the health and welfare of the general population to provide treatment to individuals suffering from infectious diseases. Congress can ensure that there is an adequate fund to pay for everyone's medical needs.

The vertical separation of powers, under which the federal government possesses limited and enumerated powers, while the States wield general powers (including the right to operate their own police forces), is a key part of America's constitutional architecture. Far from being an 18th century affectation, these structural limitations on government powers were designed to protect individual liberty. In the Framers' view, limiting the ability of the federal government to exercise authority was core to ensuring that no single government entity would grow too powerful. This is because, under the Supremacy Clause, any constitutionally compliant federal legislation trumps exercises of individual state’s powers. Therefore, an infinitely capacious Commerce Clause (which would be produced if the mandating of healthcare were to be allowed) would rob States of any remaining authority.(8)

When any choice or non-action which has economic impacts becomes termed as “economic”, every aspect of consumer behaviour, or, for that matter, any aspect of individual behaviour, would become an economic activity, and thus nothing would fall outside of Congress' power to regulate under the commerce clause.(8)

The individual health insurance mandate would set dangerous precedents for federal power. The Congressional Budget Office acknowledged the unprecedented nature of an individual mandate when assessing the Clinton health care reform proposal of 1993: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate has two features that, in combination, make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would have to be heavily regulated by the federal government."(2)

The 'commerce clause on steroids', as imagined by supporters of the healthcare mandate, would fundamentally warp America's constitutional architecture. Because every single decision by individual Americans, be it buying health insurance, cars, health club memberships or any other good or service, has some impact on the economy, it could be subject to regulation by Congress. Indeed, Congress would be able to dictate how individuals would dispose of every penny of whatever monies they have left after paying taxes, transforming Americans into virtual serfs.(8) For all these reasons the individual healthcare mandate would give too much power to the federal government, in ways which are antithetical to the Constitution as the Founders envisioned it and set it out (with restricted and separate powers), and so it should be deemed unconstitutional.

The healthcare insurance can be unprecedented but still be constitutional as Erwin Chemerinsky argues: “Anything that has never been done before is literally unprecedented, which means it lacks any precedent. So the question is, will the Supreme Court want to authorize this new extension of congressional power in light of the fact that it violates the first principles it affirmed in Lopez and Morrison? Or, to the contrary, will it want to take the opportunity reaffirm that these principles still apply, notwithstanding Raich, in a case with no further implications beyond the statute in question?”(10)

Regarding the argument that the healthcare mandate will allow Congress to regulate everything and everyone, such hyperbole and apocalyptic predictions are familiar in this area. In 1918, in Hammer v. Dagenhart, the Supreme Court declared unconstitutional a federal law that prohibited the shipment in interstate commerce of goods made by child labour. The Court concluded its opinion by declaring: "[I]f Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government practically destroyed." For more than 70 years Congress has prohibited child labour and none of these dire predictions have come to pass. Nor would allowing Congress to mandate the purchase of health insurance mean that Congress could regulate who people invite to their homes for dinner or end our system of federalism.(10)

It is unconstitutional to require individuals to buy private insurance, and penalize them for not doing so (that is, penalizing their non-act, their omission to purchase insurance). As David B. Rivkin Jr. and Lee A. Casey argue: “… 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.”(1)

The Congressional Budget Office believes “a mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”(2) An individual mandate would have two features that, in combination, would make it unique. First, it imposes a duty on individuals due to them being members of society. Second, it requires the purchase of a specific service on pain of tax penalties if that product is not purchased. (2)

As noted by Sen. John Ensign, a Nevada Republican: "Anything we have ever done, somebody actually had to have an action before we could tax or regulate it."(3) As Robert A. Levy and Michael F. Cannon of the CATO Institute argue: “Congress' attempt to punish a non-act that harms no one is an intolerable affront to the Constitution, liberty, and personal autonomy. That shameful fact cannot be altered by calling it health-care reform.”(4) The individual healthcare insurance mandate would, for the first time, mean the government setting uo a monopoly or a cartel with which every citizen of the US would be compelled- by a statutory power- to do business. This destroys any pretence of individual market freedom, individuals would be required to contribute money out of each and every pay check they earned to either a government entity which would be staffed and/or controlled by political appointees or to a cartel made up of companies that would owe their continued existence on the cartel list to the acquiescence of political overseers. Either way, the reduction in individual autonomy and freedom over health care choices would be dramatically decreased and inevitably politicized. This has obvious worrying possibilities for corruption, the party in power would favour those who donate to the party.(5)

Enforcing the mandate may also intrude on Constitutional rights. Sherry Glied, Ph.D., Assistant Secretary for Planning and Evaluation at the U.S. Department of Health and Human Services has warned, “[d]eveloping a system to promptly identify and penalize scofflaws [people who flout the law] will take effort and ingenuity, particularly in our diverse and mobile country. It may require a degree of intrusiveness and bureaucracy that some will find unpalatable.”(6)This is likely to mean much more intrusive inspection, for example hospitals having to report to the government patients they have who don’t have health insursnce..(6) This is why a majority of the states, and numerous organizations and individual persons, have filed actions in federal court challenging the constitutionality of the individual mandate, and several courts have already struck it down on constitutional grounds.(7)

For all these reasons it is clear that for Congress to try to penalize a non-act is an unprecedented and unconstitutional power grab, and so the individual mandate is unconstitutional.

The federal government mandates positive activities all the time, and this is why several courts have also upheld the constitutionality of the individual mandate.(7)

Regarding the charge that the individual mandate penalizes a 'non-action', Stephanie Cutter, an adviser to President Barack Obama, has argued: "Individuals who choose to go without health insurance are making an economic decision that affects all of us—when people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab."(7) Thus these people are not engaging in a 'non-action' but rather in an economic choice which has negative implications for other Americans, something Congress has the constitutional power to regulate under the commerce clause and the constitution's provision that Congress should promote the general welfare.

Many attorneys general have fought constitutionality of mandates. Since the passage of the legislation in March of 2010, many state governments, governors, and attorney generals have pressed forward with lawsuits centred on the idea that the individual mandate in the legislation is unconstitutional.(7) Underlying these legal challenges is a debate about the basis of the national Congress’s lawmaking powers. In order for laws passed by Congress to be considered legitimate and enforceable, those laws must be based on a power conferred on congress by the Constitution. On those areas of law and public life where the Constitution is silent, legislative power rests not in the hands of Congress, but rather is “reserved to the States respectively, or to the people.”(9)

It has been argued that the individual healthcare mandate is authorised by the Constitution's empowerment of Congress to “regulate interstate commerce” (known as the “commerce clause”), however this is not true and the commerce clause does not authorize health insurance mandates. As the Congressional Research Service has written: "Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance. Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.”(2) The most obvious reason for this is that an omission to buy health insurance can in no way be termed 'interstate commerce', as there is no activity or commerce going on. This is not in keeping with the commerce clause, unlike other previous federal healthcare laws.

There is no doubt that Congress can regulate an entire array of economic activities, large and small, inter- and intra-state. Thus, for example, there is no problem, Constitution-wise with having Congress regulate health care insurance purchase transactions. The problem with an individual insurance purchase mandate, however, is that it does not regulate any transactions at all; it regulates human beings, simply because they exist, and orders them to engage in certain types of economic transactions.(8)

While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual citizen who chooses not to undertake a commercial transaction. The decision not to engage in affirmative conduct is arguably distinguishable from cases in which Commerce Clause regulatory authority was recognized over intra-state activity: growing wheat, for example, (Wickard v. Filmore) or, more recently, growing marijuana (Gonzales v. Raich).(6)

If Congress were to invoke its Commerce Clause authority to support legislation mandating individual health insurance coverage, such an action would have to contend with recent Supreme Court precedent limiting unfettered use of Commerce Clause authority to police individual behaviour that does not constitute interstate commerce: United States v. Lopez, invalidating the application of the Gun Free School Zones Act of 1990 to individuals, and United States v. Morrison, invalidating certain portions of the Violence Against Women Act.

In the case of a mandate to purchase health insurance or face a tax or penalty, Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.(6) Therefore, it is clear that Congress is not empowered to regulate the choice not to buy healthcare, as it lacks constitutional authorisation to interfere in this aspect of individual Americans’ private lives.

A refusal to purchase healthcare insurance can have an effect on interstate commerce, because in shrinking the risk pool of insured the premiums would incrementally rise. In 2007, healthcare expenditures amounted to $2.2 trillion, or $7,421 a person, and accounted for 16.2% of the gross domestic product. These statistics leave no doubt that regulating health insurance is synonymous with regulating interstate commerce.(10)

Not engaging in economic transactions is a form of commercial behaviour that Congress can regulate. The Supreme Court held that Congress could require that hotels and restaurants provide services to African-Americans. Their refusal to engage in commerce still was deemed to be within the scope of Congress's commerce clause power.(10)

The likelihood is that everyone will require medical care at some point. An uninsured person in a car accident will be taken to the emergency room for treatment. An uninsured person with a communicable disease will be treated; indeed, it is necessary for the health and welfare of the general population to provide treatment to individuals suffering from infectious diseases. Congress can ensure that there is an adequate fund to pay for everyone's medical needs.

The vertical separation of powers, under which the federal government possesses limited and enumerated powers, while the States wield general powers (including the right to operate their own police forces), is a key part of America's constitutional architecture. Far from being an 18th century affectation, these structural limitations on government powers were designed to protect individual liberty. In the Framers' view, limiting the ability of the federal government to exercise authority was core to ensuring that no single government entity would grow too powerful. This is because, under the Supremacy Clause, any constitutionally compliant federal legislation trumps exercises of individual state’s powers. Therefore, an infinitely capacious Commerce Clause (which would be produced if the mandating of healthcare were to be allowed) would rob States of any remaining authority.(8)

When any choice or non-action which has economic impacts becomes termed as “economic”, every aspect of consumer behaviour, or, for that matter, any aspect of individual behaviour, would become an economic activity, and thus nothing would fall outside of Congress' power to regulate under the commerce clause.(8)

The individual health insurance mandate would set dangerous precedents for federal power. The Congressional Budget Office acknowledged the unprecedented nature of an individual mandate when assessing the Clinton health care reform proposal of 1993: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate has two features that, in combination, make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would have to be heavily regulated by the federal government."(2)

The 'commerce clause on steroids', as imagined by supporters of the healthcare mandate, would fundamentally warp America's constitutional architecture. Because every single decision by individual Americans, be it buying health insurance, cars, health club memberships or any other good or service, has some impact on the economy, it could be subject to regulation by Congress. Indeed, Congress would be able to dictate how individuals would dispose of every penny of whatever monies they have left after paying taxes, transforming Americans into virtual serfs.(8) For all these reasons the individual healthcare mandate would give too much power to the federal government, in ways which are antithetical to the Constitution as the Founders envisioned it and set it out (with restricted and separate powers), and so it should be deemed unconstitutional.

The healthcare insurance can be unprecedented but still be constitutional as Erwin Chemerinsky argues: “Anything that has never been done before is literally unprecedented, which means it lacks any precedent. So the question is, will the Supreme Court want to authorize this new extension of congressional power in light of the fact that it violates the first principles it affirmed in Lopez and Morrison? Or, to the contrary, will it want to take the opportunity reaffirm that these principles still apply, notwithstanding Raich, in a case with no further implications beyond the statute in question?”(10)

Regarding the argument that the healthcare mandate will allow Congress to regulate everything and everyone, such hyperbole and apocalyptic predictions are familiar in this area. In 1918, in Hammer v. Dagenhart, the Supreme Court declared unconstitutional a federal law that prohibited the shipment in interstate commerce of goods made by child labour. The Court concluded its opinion by declaring: "[I]f Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government practically destroyed." For more than 70 years Congress has prohibited child labour and none of these dire predictions have come to pass. Nor would allowing Congress to mandate the purchase of health insurance mean that Congress could regulate who people invite to their homes for dinner or end our system of federalism.(10)

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid 'regulation,' it still could fall easily within Congress’s plenary power to tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty.

The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a 'head tax' or 'poll tax' (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws.

Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behaviour, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional. (11) In many ways, the 'mandate' could be considered a tax, but a tax which people would not have to pay if they purchased health insurance. The House bill imposes a tax of 2.5% on adjusted gross income if a taxpayer is not part of a qualified health insurance program. The Senate bill imposes what is called an “excise tax”, a tax on transactions or events, or a “penalty tax”, a tax for failing to do something (e.g., filing your tax return promptly). The tax is levied for each month that an individual fails to pay premiums into a qualified health plan. Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment.(17)

Health insurance mandates incentivize behaviour like many other laws. At one time, the Supreme Court restricted the ability of Congress to use its taxing power to regulate people's activities. In the early part of the 20th Century, the Court drew a distinction between taxes designed to raise revenue, which were permissible, and taxes designed to regulate behaviour, which might not be permissible. However, this distinction was jettisoned by 1937, and the taxing power is now recognized as a broad congressional power.(12) Moreover, Congress has the power to make laws which promote the general welfare. As Democratic House Majority Leader Steny Hoyer argued in November of 2009: “Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end. The end that we're trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility." The words "general Welfare" show up in the first line of Article I, Section 8 of the US Constitution: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”(12)

The power to promote the general welfare becomes crucial when it is considered that it is impossible to create a national health insurance system and help the current 30 million uninsured is to mandate everyone to buy health insurance. You cannot have universal health insurance without a mandate. Every country in the world that has a universal health-insurance system either requires its citizens to buy health insurance, or includes its citizens in a default insurance programme automatically and taxes them for it (which is effectively the same thing). The reasons for this are simple, and have been covered hundreds of times since the current debate over universal health insurance began during the Democratic presidential primaries in late 2007. If citizens within a state are not obliged to participate in a healthcare scheme (whether privately of publicly organised), then many young and healthy people will bet on not needing insurance, and will decline to buy it. Such behaviour will alter the composition of the risk pool,  such that it is made up of older, sicker people with higher medical costs, and thus premiums will rise. That in turn will cause more healthy people to leave the system. This is the phenomenon of "adverse selection". Ultimately you're left only with rich old sick people, and nobody else can afford insurance. This is known- somewhat histrionically- as an “insurance death spiral”.

States that wish to pursue the goal of creating an affordable, universally available system of healthcare, must ensure that the majority of their citizens buy into such a scheme.(13) Because there is a compelling benefit to the "general welfare"  in instituting a national welfare program, the federal government may rely on Constitutional authority to impose a health insurance mandate. If the States were left to do this, with some instituting a mandate and some not, many would be left uninsured and the risk pool would not be adequately spread. The difference in benefits to the country clearly justifies federal action to create this individual mandate under the Constitution.

Insurance mandates are not a tax and therefore are outside of constitutional powers. Randy Barnett, a Georgetown University law professor, claims that health insurance mandates are not a tax, and therefore falls outside congressional power. “You're fining people for failing to enter a private insurance contract.”(3)

Moreover, as Peter Urbanowicz and Dennis G. Smith argue: “the question of whether the compelled purchase of health insurance constitutes the 'taking' of private property under the Fifth Amendment. Given the novel nature of the individual health insurance mandate, a Fifth Amendment challenge can be expected. Requiring a citizen to devote a per-cent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances could be considered an arbitrary and capricious “taking” no matter how many hardship exemptions the federal government might dispense.”(6)

Regarding the “general welfare” arguments adduced by side opposition: The words 'general Welfare' show up in the first line of Article I, Section 8: 'The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States'. Significantly, Notice the Constitution does not say the 'general welfare of the citizens of the United States.' It says "general Welfare of the United States.' This clause only gives the Congress the power to raise money to defend the country and pay for the day-to-day operations of the government. It says nothing at all about building bridges to nowhere, or paving bike paths, or spending money on any other kind of pork barrel project, including health care.(13)

Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy.

Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. Where a Congressional power exists, nothing in law says that ”strong” and potentially more intrusive forms of action are less supported than weaker ones.(11)

Critics of an individual mandate cite recent Supreme Court cases in which the Court has limited the commerce clause’s power. However, those cases (Lopez and Morrison) involved regulation of non-economic activity. The individual mandate regulates the relationship between sellers and buyers of health care insurance. Moreover, the Court was concerned in Lopez and Morrison with efforts by Congress to intrude into areas that are properly regulated by state governments and thereby to upset the balance of power between the federal and state governments. By contrast, congressional regulation of the health care industry does not violate state prerogatives.

To be sure, much regulation of insurance occurs at the state level, but that is because Congress has chosen by statute to defer to state regulation. The Constitution does not prevent Congress from revoking its statutory grants to state governments.(12) Those who argue that this is unconstitutional maintain that those not purchasing health insurance, by definition, are not part of interstate commerce. There are numerous flaws with this argument.

First, Congress can regulate activities that themselves are not part of interstate commerce if they have a substantial effect on interstate commerce. For example, in Wickard v. Filburn, the Supreme Court held that Congress could regulate wheat that farmers grew for their own home consumption. More recently in Gonzales v. Raich, the Court ruled that Congress could prohibit cultivating and possessing small amounts of marijuana for personal medicinal use. Even though the individuals were not personally engaged in commerce, the matter still fit within the commerce power.(10)

Second, the decision to abstain from particular economic transactions is a form of commercial behaviour that Congress can regulate. The Supreme Court held that Congress could require that hotels and restaurants provide services to African-Americans. Their refusal to engage in commerce still was deemed to be within the scope of Congress's commerce clause power.(10) This is made more significant by the fact that the decision to remain uninsured can affect commerce- both within and between states- by raising health insurance premiums. This is because insurance premiums tend to rise in response to reductions in the size of the pool of individuals to whom financial risk can be distributed.(14)

Citizens who forego health insurance are forcing other Americans to cover their costs if they are sent to hospital for emergency treatment. They are also forcing others to pay higher insurance rates, now that insurance companies can no longer legally exclude those with pre-existing conditions.(15)

Third, the likelihood is that everyone will require medical care at some point. An uninsured person in a car accident will be taken to the emergency room for treatment. An uninsured person with a communicable disease will be treated. Congress can ensure that there is an adequate fund to pay for everyone's medical needs. In other words, the health care system is part of interstate commerce. Providing care for all unquestionably has a substantial economic effect. Congress, then, can use its authority under the necessary and proper clause to make sure that the system that it is creating is viable and capable of providing health care for all.(10)

Therefore the individual healthcare mandate is constitutional because it is authorized under the commerce clause of the constitution.

These arguments overlook the existence of two major cases – United States v. Lopez and United States v. Morrison – in which the Supreme Court has specifically rejected the notion that Congress can regulate non-commercial behaviour merely because, arguably, such behaviour can have an impact on Commerce. The Court's overarching reason for doing so was its compellingly articulated belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious. This reasoning is unassailable, and demonstrated that the individual mandate is not a reasonable application of the commerce clause.(8) Rather, this interpretation of the commerce clause could potentially America's constitutional structure. Every single decision made by individual Americans, be it buying health insurance, a car, health club memberships or any other good or service, has some impact on the economy. Such decisions could therefore be subject to regulation by Congress. Indeed, Congress would be able to determine how individuals would dispose of every penny of whatever monies they have left after paying taxes.

Meanwhile, the Supremacy Clause- which ensures that any constitutional federal legislation trumps exercises of state power- would all but guarantee that an infinitely capacious Commerce Clause would rob States of any remaining authority. This point was ably articulated by Justice Kennedy in his concurring opinion in Lopez.(8)  Accordingly, there is a great deal at stake here. No matter how important the cause of health care reform might be, it is not consequential enough to destroy the very sinews of America’s constitutional system.

Federal mandates are a cornerstone of the American legal system and the everyday life of every American. As Ohio Attorney General Richard Cordray and Iowa's attorney general Tom Miller, argued in 2010: "We live under mandates every day. Without them, society as we know it would disintegrate. Every criminal law tells us what we cannot do. And sometimes the law tells us what we must do. Congress can require young Americans to register for the draft to serve in the military, for example, or can require us all to pay taxes for programs like Social Security and Medicare. We can- and do- argue about what shape these laws should take, without claiming that our leaders are constitutionally barred from dealing with our most pressing problems."(16)

Car insurance is mandatory, so why not health insurance too? If the government requires that individuals buy car insurance, why should it not also be allowed to require that individuals buy health insurance? Some say that there is no mandate to buy car insurance because if you don't want to buy that car insurance, you simply don't have to drive. Yet, for the majority of families and workers, driving is a necessity and not a choice. So, the mandate on drivers to buy insurance is, therefore, directly analogous to a mandate on individuals to buy health insurance.

Medicare tax also sets an important justifying precedent for the individual healthcare mandate. The Medicare program imposes a payroll tax on Americans as a way to fund coverage of their hospital costs once they reach age 65. People cannot opt out of Medicare; it is an obligatory system of health care insurance for one's senior years. Similarly, Congress can use a payroll tax to implement a mandate for individuals to purchase health insurance before they reach age 65. Under the House bill, for example, people will pay a 2.5 percent tax on their income unless they have health care coverage.(12)

It is significant here that there is no fundamental right to go without insurance under the Constitution; no core constitutional rights are violated by the individual mandate. Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive, alongside treatment that they might not be able to consent to (by reason of infirmity), but that doctors and hospitals may be ethically obliged to provide.

The “liberties” that are modified by the individual mandate are purely economic and have none of the strong elements of personal or bodily integrity that are normally used to invoke Constitutional protection.

In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.(11) This means that the healthcare mandate is no different to the many other mandates the federal government imposes on the American people to support the general welfare, and as such should be upheld as constitutional.

Mandatory health insurance is not analogous to car insurance. Car insurance requirements impose a condition on the voluntary activity of driving; a health insurance mandate imposes a condition on life itself.

States do not require non-drivers, including passengers in cars with potentially bad drivers, to buy auto insurance liability policies -- even though such a requirement undoubtedly would lower the auto insurance premiums for those who do drive. The auto insurance requirement is linked to driving and to the possibility that bad driving may cause injuries to others, including passengers in the driver's car, not to those who benefit from roads generally.(2) The primary purpose of the auto insurance mandate was to provide financial protection for people that a driver may harm, and not necessarily for the driver himself. And the auto insurance mandate is a quid pro quo for having the state issuing a privilege: in this case a driver’s license.(6)

Regarding the claim that Medicare tax provides a justifying precedent for the individual healthcare mandate, it is worth noting that the architects of Medicare harboured grave doubts about its constitutionality, which was ultimately settled on the taxing power of the United States government. However, in contrast to an individual mandate, federal benefits are attached to Medicare taxes and there is a specific “contract” involved between the current payment of taxes and future government benefits. No such relationship would exist with the individual health insurance mandate. Additionally, while one can “opt-out” of receiving Social Security and Medicare benefits, although one must still pay Social Security and Medicare taxes, none of the individual mandate proposals provide for an “opt out”, other than for yet undefined religious objections. Interestingly, a suit being led by former House Majority Leader Richard Armey is challenging a federal regulation that suggests that opting out of Medicare will put a person’s Social Security benefits at risk.(6)