Wednesday, November 11, 2009

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.

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