American Constitution Society on the constitutionality of comprehensive health insurance reform

[Derechos]

Recently, some opponents of comprehensive health insurance reform have introduced a new contention – namely, that a cornerstone of the reform bills pending before Congress, a requirement that most individuals purchase and maintain health insurance coverage, is unconstitutional. This issue paper addresses this claim. The paper reviews the relevant features of the legislation, Congress‟ rationale and record supporting the requirement (generally called the “individual mandate”), relevant constitutional provisions and judicial precedents, and reform opponents‟ arguments challenging the lawfulness of the mandate. The paper concludes that the mandate is lawful and clearly so – pursuant either to Congress‟ authority to “regulate commerce among the several states,” or to its authority to “lay and collect taxes to provide for the General Welfare.”1 With respect to Congress‟ interstate commerce authority, the goals that drive this legislation – including achieving universal coverage, eliminating adverse selection, eliminating pre-existing conditions as a prerequisite for coverage, facilitating broad-scale pooling of individuals not covered by group health plans, and radically reducing costly emergency room visits by uninsured individuals – are eminently lawful objects for the exercise of that power. In the context of current health insurance market circumstances and the framework of the legislation, the use of an individual mandate, structured as it is to ensure affordability for all who are subject to it, is likewise an eminently rational and well-supported (“necessary and proper” in the words of Article I, §8) means for achieving these goals. The same goals and choice of means fit the mandate snugly within precedents broadly defining Congress‟ authority to tax and spend.

http://www.acslaw.org/files/Lazarus%20Issue%20Brief%20Final.pdf