an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Constitutionality of the Individual Health Insurance Mandate
Penn's PENNumbra is hosting a debate between David Rivkin, Lee Casey, and myself on whether the individual mandate in President Obama's health care plan is constitutional. The first round of the debate has been published. Rivkin and Casey think the individual mandate is unconstitutional, and you can read their arguments here. I believe that the individual mandate is constitutional and you can read my arguments here.
If you would like to read the actual language of the individual mandate in the House bill, (Section 501) it is here.
As you can see, it is a 2.5 percent tax on adjusted gross income, with various exemptions for people on Medicare, Medicaid, veterans, people living overseas, people who are too poor to pay the tax, and people who have religious objections.
Rivkin and Casey take the position that this tax is beyond Congress's powers under the power to tax and spend for the general welfare and the power to regulate interstate commerce. I take the view that this is a fairly unremarkable exercise of Congress's power to tax income for regulatory purposes, and that it is also within Congress's power to regulate insurance markets under the Commerce Clause.
I do not regard this as even a close question after the New Deal. Thus, the debate between Rivkin, Casey, and myself has overtones of the debate about the constitutionality of the modern state created by the New Deal, and indeed, Rivkin and Casey's constitutional argument relies on The Child Labor Tax Case, (Bailey v. Drexel Furniture Company), a Lochner-era precedent which struck down a Congressional attempt to ban child labor.