Is an individual mandate constitutional? Legal scholars are divided

Some legal scholars are questioning the constitutionality of a proposed mandate that would require most Americans to carry health insurance or pay a tax penalty, The Washington Times reports. This would be the first time that Congress has "required citizens to purchase any good or service." The argument against the constitutionality of such a provision "strikes at a pivotal part of the health care plan's finances."

"House Speaker Nancy Pelosi [D-Calif.] dismissed the complaint Thursday when she was asked by a reporter if the Democrats' health reform proposal was constitutional," but "House Minority Leader John A. Boehner [R-Ohio] said the argument could not be ignored." One legal argument is that the Constitution does not explicitly give Congress the power to mandate health insurance coverage. "'The business of providing health insurance is now an entirely intrastate activity' beyond the regulatory sway of the federal government," says Randy Barnett, a professor at Georgetown University Law Center. "But other legal scholars say that the Supreme Court has in recent decades taken a much broader view of Congress' commerce powers and would likely do the same in this case if the legislation's mandate is challenged in court" (Lambro, 10/28).

The Associated Press has a primer on how an individual mandate would work as well as the arguments for and against it. "Republicans say the penalties, which are referred to as taxes in congressional documents, would violate Obama's campaign pledge not to increase taxes on families making less than $250,000 a year. Supporters say a penalty is needed to prevent people from gaming the system" (Ohlemacher, 10/27).

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This article was reprinted from khn.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.