“Qualified” insurance plans and the Constitution

I recently did a post on the constitutionality of Congress’s  plan to mandate that all have insurance or be forced to pay a tax.  That post got me thinking about other aspects of Obamacare.  One of the key provisions of all bills floating around Congress is that not only must you have insurance, but you also will have to participate in a qualified plan, or pay a tax.

Using the Kennedy-Dodd Unaffordable Health Choices Act as an example, Section 161 of Subtitle D (page 103) requires that, if you have individual health insurance, unless you have a “qualified” plan, a tax will be imposed upon you.

Ok, so what is a “qualified” plan?

Under Section 3103 (pages 62-69), the Secretary of Health and Human Services makes that decision based upon a report prepared by a Medical Advisory Council appointed by the Secretary.  In other words, if the Secretary decides that, for example, acupuncture must be included in all insurance policies sold in this country, then, unless your policy covers that, your plan is not “qualified”.  Should that be the case, you have two choices.  Switch to a more expensive plan (as it will be if it must cover acupuncture), or stay with your own plan and, pay a tax.

But, can Congress do this?  Can Congress (through regulations promulgated by the Secretary of Health and Human Services) tell you what services (or deductibles, or copays) must be in your insurance plan, and, if they are not there, you must pay a tax?

It seems to me that the powers of Congress enumerated in Article I, Section 8 of the Constitution would no more allow that than they would if Congress decided that you should pay a tax if you don’t eat “the right” foods, or wear “the right” clothes, or have too many (or too few) children.

No matter how well-meaning some think the overall health care proposals may be, these activities are personal in nature, and, beyond the reach of the federal government.  Simply put, if the federal government can’t reach those things, it can’t tax those things.

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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. sammy22 on September 29, 2009 at 3:31 am

    I still think the Supreme Court should decide what is constitutional or not.

  2. comanchepilot on September 29, 2009 at 6:10 am

    If social security and medicare are legal, then this will be as well – go read the cases supporting the legality of FICA  – they know that the Supreme Court challenge will fail.


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