The Constitutionality of Mandates to Purchase Health Insurance

The U.S. Supreme Court upheld compulsory automobile insurance long ago, even when judicial scrutiny of economic and social legislation was much more demanding. Ex Parte Poresky, 290 U.S. 30 (1933).

U.S. Const. Art. I, Sec. 8, Clause 3.

See, e.g., United States v. Darby Lumber Co., 312 U.S. 100 (1941), overturning Hammer v. Dagenhart, 247 U.S. 251 (1918) regarding child labor laws.

545 U.S. 1 (2005) (6–3, per Stevens, J.).

Id., at 19.

514 U.S. 549 (1995) (5–4, per Rhenquist, W.).

Id., at 557.

Id., at 561.

529 U.S. 598 (2000) (5–4, per Rhenquist, W.).

Id., at 610.

425 U.S. 738 (1976) (9–0, per Marshall, J.).

See Monahan A. B. , “Federalism, Federal Regulation, or Free Market? An Examination of Mandated Health Benefit Reform,” University of Illinois Law Review (2007): 1361–1416, at 1389.

United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944).

15 U.S.C. 1011 (2000).

U.S. Const. Art. I, Sec. 8 Clause 1.

Helvering v. Davis, 301 U.S. 619 (1937).

See Penalver E. , “Regulatory Taxings,” Columbia Law Review 104 (2005): 2198–2199, at 2182; Martinez L. P. , “The Trouble with Taxes: Fairness, Tax Policy, and the Constitution,” Hastings Constitutional Law Quarterly 31 (2004): 430–446, at 413 (“This deference to Congress or to state legislatures in matters relating to taxation is a theme that echoes throughout the Court's tax cases…. The power to tax is circumscribed only when a very high threshold of arbitrariness or irrationality is met.”).

Baily v. Drexel Furniture Co., 259 US 20 (1922).

Chemerinsky E. , Constitutional Law: Principles and Policies (New York: Aspen Law & Business, 3rd ed. 2006): At 276–278.

Sonzinsky v. U.S., 300 U.S. 506, 513 (1937). The modern view is captured in Regan v. Taxation With Representation of Washington, 461 U.S. 540, 547 (1983) (9–0, per Rehnquist, J.): Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes. “The passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. It has, because of this, been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.”

Kaye T. A. Mazza S. W. , “Constitutional Limitations on the Legislative Power to Tax in the United States,” Michigan State Journal of International Law 15 (2007): 481–520. There might also be a challenge if a tax law was not uniform across the states, but even then some variation is permitted to account for different local circumstances. See Greely H. T. , “Policy Issues in Health Alliances: Of Efficiency, Monopsony, and Equity,” Health Matrix 5 (1995): 37–82, at 65.

For instance, before it was repealed the National Health Planning and Resources Development Act of 1974 required states, as a condition for receiving federal funds for hospital construction and medical institutions, to adopt a comprehensive “certificate of need” regulation of capital expenditures by health care facilities. Despite the federalism concerns of mandating state legislation that, in part, regulated state-owned facilities, the Supreme Court summarily affirmed a lower court's decision that this was a valid exercise of Congress's spending power. North Carolina v. Morrow, 435 U.S. 962 (1978), affirming mem. North Carolina v. Califano, 445 F. Supp. 532 (E.D.N.C., 1977) (3-judge court).

Rosenthal A. J. , “Conditional Federal Spending and the Constitution,” Stanford Law Review 39 (1987): 1103–1164, at 1163.

483 U.S. 203 (1987) (7–2, per Rehnquist, J.),

Nowak J. E. Rotunda R. D. , Constitutional Law, 7th ed. (St. Paul: West, 2004): At 230–231.

Hoke C. , “Constitutional Impediments to National Health Reform: Tenth Amendment and Spending Clause Hurdles,” Hastings Constitutional Law Quarterly 21 (1994): 489–575, at 572 (1994). Accord R. Briffault, “Federalism and Health Care Reform: Is Half a Loaf Really Worse Than None?” Hastings Constitutional Law Quarterly 21 (1994): 611–633, at 613–16. See generally, Sullivan K. M. , “Unconstitutional Conditions,” Harvard Law Review 102 (1989): 1413–1506; Baker L. A. , “Conditional Federal Spending After Lopez,” Columbia Law Review 95 (1995): 1911–1989.

U.S. Const. Amend. X.

United States v. Darby, 312 U.S. 100, 124 (1941).

505 U.S. 144 (1992) (6–3, per O'Connor, J.).

521 U.S. 898 (1997) (5–4, per Scalia, J.).

Id., at 918.

See Siegel N. S. , “Commandeering and Its Alternatives: A Federalism Perspective,” Vanderbilt Law Review 59 (2006): 1629–1691; Jackson V. C. , “Federalism and the Uses and Limits of Law: Printz and Principle?” Harvard Law Review 111 (1998): 2180–2259.

Reno v. Condon, 528 U.S. 141, 151 (2000) (9–0, per Rehnquist, J.) (upholding a federal law prohibiting states from selling drivers license information for commercial purposes).

See Hoke , Supra note 26, at 565.

505 U.S. 144 (1992) (6–3, per O'Connor, J.).

Id., at 167.

See, e.g., Kondrates A. , “Assessing the New Federalism: An Introduction,” Health Affairs, 17 no. 3 (1998): 17–24.

469 U.S. 528 (1985) (5–4, per Blackmun, J.)

Id., at 554.

U.S. v. Lee, 455 U.S. 252, 257 (1982).

Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).

42 U.S.C. § 2000bb et seq. Note, as the result of City of Boerne v. Flores, 521 U.S. 507 (1997), which held that RFRA's application to state laws unconstitutional, RFRA now applies only to federal laws.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)).

455 U.S. 252 (1982).

Id., at 260.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–31 (2006).

Id., at 421.

U.S. Const. Amend. V.

Washington v. Glucksberg, 521 U.S. 702, 727 (1997).

Stone G. R. , Constitutional Law, 5th ed. (New York: Aspen Publishers, 2005): At 765.

See U.S. v. Kras, 409 U.S. 434, 445 (1973) (“We see no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.”)

E.g., Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).

Cf. Alliance for Better Access to Developmental Drugs and Washington Legal Foundation v. Eschenbach, 495 F.3d 695 (D.C. Cir. 2007).

Cf. Chaoulli v. Quebec, 2005 SCC 35 (Canada) (finding such a right under Quebec's Charter of Human Rights).

348 U.S. 483 (1955).

Id., at 487.

Id., at 487–88.

Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (5–4, per Rehnquist, J.).

Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003) (5–4, Stevens, J.).

524 U.S. 498 (1998).

See, e.g., Merrill T. W. , “The Landscape of Constitutional Property,” Virginia Law Review 86 (2000): 885–999; Kades E. , “Drawing the Line Between Taxes and Takings: The Continuous Burdens Principle, and Its Broader Application,” Northwestern University Law Review 97 (2002): 189–265, at 194.

E.g., Rubenfeld J. , “Usings,” Yale Law Journal 102 (1993): 1077–1163.

The circumstance that the statute does not take money for the Government but instead makes it payable to third persons is not a factor I rely upon to show the lack of a taking: “[T]he Government ought not to have the capacity to give itself immunity from a takings claim by the device of requiring the transfer of property from one private owner directly to another.” 524 U.S. 498 at 543–44.

See, e.g., Lingle v. Chevron U.S. A. Inc., 544 U.S. 528 (2005).

Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211 (1986) (9–0, per White, J.).

524 U.S. at 554.

See, e.g., Church W. L. , “The Eastern Enterprises Case: New Vigor for Judicial Review?” Wisconsin Law Review 2000 (2000): 547–570; Krotoszynski R. J. , Jr., “Expropriatory Intent: Defining Property Boundaries of Substantive Due Process and the Takings Clause,” North Carolina Law Review 80 (2002): 713–772.

See generally Sunstein C. R. , Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (Cambridge, MA: Basic Books, 2005); Van Alstyne W. W. , “Foreword: The Constitution in Exile: Is It Time to Bring It In from the Cold?” Duke Law Journal 51 (2001): 1–25; Editor's Forward, “A New Constitutional Order?” Fordham Law Review 75 (2006): 471–474.

For leading exponents, see, e.g., Epstein R. , Supreme Neglect (New York: Oxford University Press, 2008); Barnett R. , Restoring the Lost Constitution: The Presumption of Liberty (Princeton, NJ: Princeton University Press, 2004).

301 U.S. 619 (1937).

348 U.S. 483 (1955).

See Sunstein , supra note 68, at 245; Calabresi S. G. , “Substantive Due Process after Gonzales v. Carhart,” Michigan Law Review 106 (2008): 1517–1541.

545 U.S. 1 (2005).

Id., at 34–35.

See also Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring) (“I reject the proposition that the Due Process Clause guarantees certain (unspecified) liberties, rather than merely guarantees certain procedures as a prerequisite to deprivation of liberty.”).

Scalia A. , “Economic Affairs as Human Affairs,” Cato Journal, no. 3 (1985): 703–709, at 705–706.

U.S. v. Carlton, 512 U.S. 26, 39 (concurring). See also Lawrence v. Texas, 539 U.S. 558, 592 (Scalia, J., dissenting, joined by Rehnquist, C. J. and Thomas, J.) (“there is no right to ‘liberty’ under the Due Process Clause… The Fourteenth Amendment expressly allows States to deprive their citizens of ‘liberty,’ so long as ‘due process of law’ is provided.”); BMW of North America, Inc. v. Gore, 517 U.S. 559, 598–599 (1996) (Scalia, J., dissenting, joined by Thomas, J.) (“I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against ‘unfairness.’”).

Some others, it is worth noting, have advanced the opposite argument, that the government is constitutionally compelled to provide universal access in some fashion. See, e.g., Barber S. A. , Welfare and the Constitution (Princeton, NJ: University Press, 2003).