Mandatory insurance and the Constitution

In the race to do something quickly about health care, it would seem that Congress has overlooked one pesky little problem…the United States Constitution.

Our founding fathers determined that the individual states were better equipped to deal with most issues.  So, when establishing Congress in Article I of the Constitution, they limited the power of Congress to only those matters specified in Article I, Section 8.

All versions of Obamacare currently pending before Congress require everyone to obtain health insurance or pay a fine for failure to do so.  But, does Congress have the power to do that?  The only way to answer the question is to look at the Constitution.

Of all of the powers listed in Article I, Section 8, there are only two that could possibly justify Congress’s actions, the power to regulate interstate commerce, and the power to tax.

The power to regulate interstate commerce would, without question, allow Congress to pass a law stating that all insurance companies must be allowed to do business across state lines.  But, having done that, could that power be extended to provide that all people in the state purchase insurance?   The best analogy I can give is that under the power to regulate interstate commerce, Congress could certainly pass a law requiring the state of Florida to permit peaches from the state of Georgia to be sold in Florida.  But, having done that, can Congress then require that all citizens in Florida must buy peaches, or be fined by the federal government for failure to do so?  I think not.  Thus, mandatory insurance cannot be supported by Congress’s power to regulate interstate commerce.

The only other provision of Article I, Section 8 that could hope to be used in an attempt to support mandatory insurance would be Congress’s power to tax.  And, although our president has said this is not a tax, the drafters of Obamacare think otherwise.  All versions of the pending legislation put the mandatory insurance requirement in the tax code!

But, just because it’s an amendment to the tax code, is it constitutional?  Again, I think the answer is, no.  No matter how laudable it may be for all to have insurance, Congress has no more power to mandate this than it would have, for example, to mandate that all people weigh no more that a certain amount, or pay a tax; or, cover their mouths when they cough, or, pay a tax; or, using the above example, buy peaches, or pay a tax.

Although all of these items may be things that promote health, Congress has no constitutional power to do so.  There simply is no “for the good of the country” exception in Article I, Section 8.

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. cpusavant on September 23, 2009 at 2:44 pm

    Actually, I would wager that they try to wedge this in under a different part – Article 1, Section 8. Direct Quote: "The Congress shall have power To…provide for the…general Welfare of the United States"

  2. sammy22 on September 24, 2009 at 1:49 pm

    Personally, I think that if there a healthcare law, somebody could/should challenge it and let the Supreme Court do its job.

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