Academic journal article Notre Dame Law Review

"Are You Serious?": Examining the Constitutionality of an Individual Mandate for Health Insurance

Academic journal article Notre Dame Law Review

"Are You Serious?": Examining the Constitutionality of an Individual Mandate for Health Insurance

Article excerpt

Are you serious? Are you serious?

Nancy Pelosi, Speaker of the House, responding to a question about the constitutionality of an individual mandate for health insurance (1)


The Patient Protection and Affordable Care Act (PPACA) (2) has significantly reformed the U.S. health care system. As a result, nearly all Americans will be required to purchase health insurance. (3) An individual mandate for health insurance is not a new idea. In 1993, the Senate Republican Task Force drafted a health care reform bill that included an individual mandate. (4)

As the debate over health care reform has unfolded, questions have been raised about whether the Constitution grants Congress the power to impose an individual mandate to purchase health insurance. (5) In 1994, the Congressional Budget Office addressed the issue, concluding that "[a] mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action." (6) More recently, the Congressional Research Service concluded that Congress might have the power to enact an individual mandate "as part of its taxing and spending power, or its power to regulate interstate commerce." (7) However, it acknowledged that "[w]hether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service." (8)

This Note analyzes whether Congress has the power to enact an individual mandate for health insurance under the Taxing and Spending Clause and Commerce Clause. (9) Part I examines the problems with our current health care system and the policy argument for an individual mandate. Part II addresses the complaint that an individual mandate would be an unprecedented assault on individual liberty. It compares the effects that prohibitions and mandates have on personal freedom and notes that there is precedent for the federal government mandating action as a condition of citizenship. Part III examines whether Congress can enact an individual mandate under its taxing power. Finally, Part IV analyzes whether an individual mandate can be enacted under Congress's power to regulate interstate commerce.


The rising cost of health care and the number of Americans without health insurance are two of the main concerns that drove the push for health care reform. (10) In 2007, health care spending in the United States was equivalent to 16.2% of gross domestic product (GDP). (11) This total is expected to rise to 25% of GDP by 2025 if our current health care system is not reformed. (12) Since 1980, the annual rate of growth in medical care prices was 4.7%--almost double the annual rate of inflation. (13) The cost of obtaining health insurance has increased significantly in the last decade, making it difficult for some Americans to afford health insurance. (14)

In 2007, 45.7 million Americans were uninsured at some point during the year. (15) Over ninety-eight percent of the uninsured are under age sixty-five. (16) The two main groups of the uninsured are low-wage workers who do not receive health insurance through their employers and healthy young people unwilling to buy insurance at its current price. (17) Thirty-nine percent of the uninsured are nineteen to thirty-five years old, (18) and sixteen percent of the uninsured earn at least $50,000 per year in household income. (19) One recent study estimates that forty-three percent of uninsured Americans have enough disposable income to afford health insurance but voluntarily choose not to purchase it. (20)

Being uninsured can adversely affect an individual's health. The uninsured have a higher premature mortality rate than people with health insurance. …

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