The Constitutionality of Mandates to Purchase Health Insurance: Legal Solutions in Health Reform

Publication Date: February 2009

Publisher: O'Neill Institute for National and Global Health Law, Georgetown Law, Washington DC; Robert Wood Johnson Foundation

Author(s): M.A. Hall

Research Area: Law and ethics

Type: White Paper

Abstract:

Health insurance mandates are a component of many health care reform proposals, but a federal mandate requiring that individuals transfer money to a private party is unprecedented. This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise given such a mandate.

Key Findings:

* There are no Constitutional barriers for Congress to legislate a health insurance mandate, as long as the mandate is properly designed and executed.
* Congress has the authority to enact a health insurance mandate under the Commerce Clause of the Constitution, and via its authority to tax and spend for the general welfare.
* If Congress wants states to implement health insurance mandates, it can use conditional spending or conditional pre-emption to create mandates at the state level.
* The legal analysis presented is likely to endure, as the Supreme Court's interpretation of the relevant Constitutional issue appears stable.

The Constitution permits Congress to legislate a health insurance mandate. Congress can impose a tax on those that do not purchase insurance, or provide tax benefits to those that do purchase insurance.

This white paper is part of the Legal Solutions in Health Reform project. It was created by the O'Neill Institute for National and Global Health Law at Georgetown University. The project aims to identify practical, workable solutions to the legal issues that may arise in any upcoming federal health reform debate.