Is Health Care Reform Unconstitutional?

It’s hard to keep track of all the various claims, real or imagine, about HR 3200, the House health care reform bill. One that seems persistent is the idea that the individual mandate – a requirement that individuals either obtain coverage or pay a percentage of their income as a fine – is unconstitutional, presumably because it infringes on an individual’s rights. This never seemed right to me. Massachusetts already has an individual mandate, and it has already survived court challenges. But I’m not a legal expert, so I did what anyone would do – I asked a lawyer.

Or rather, I waited for the lawyers at Health Reform Watch, a project of Seton Hall University School of Law’s Health Law & Policy Program, to blog about the constitutional question. The pull-no-punches answer from Professor Mark Hall from Wake Forest School of Law? “Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.”

Professor Hall is writing in layman’s terms, so I recommend reading his explanation in full. But his constitutional concerns are allayed because there’s no coercion of a fundamental right in the individual mandate clause. You wouldn't be required to or prohibited from receiving medical treatment (both of which would be considered a violation of a fundamental right, particularly if religious objections were involved), merely “to have a means to pay for any treatment they might choose to receive.”

Here we get to point two -- we’re talking about enforcement through the income tax code, an area where Congress has broad authority since 1913 that is consistently held up by the courts. In fact, as Prof. Hall points out, “our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.” I’d actually take it a step further – no one is actually required to even purchase insurance, merely to pay a slightly heavier tax if they do not. And there is a process for those who truly cannot afford any insurance plan to quality for a hardship exemption.

The individual mandate may well be odious for other reasons – without a strong public option, it basically forces everyone to become a customer of a private insurance monopoly. But constitutionality ain’t one of ‘em.

(Photo credit:  Thorn Enterprises on Flickr.)