The Constitutionality of the Individual Mandate for Health Insurance

The New England Journal of Medicine ^ | January 13th, 2010 | Jack M. Balkin, J.D., Ph.D.

[Bratch]

This article was linked by Jake Tapper in one of his twitter posts.

[beethovenfan]

OK, so the “mandate” is really a “tax”. That makes me feel so much better. I don’t need any more f-ing taxes!!!!

[Man50D]

If our founding fathers intended for the ICC in Article 1 Section 8 to have sweeping powers then there would have been no need for them to list specific powers granted to Congress also in Article 1 section 8. They would have only written the ICC in Article 1 section 8. Nor would they have bothered writing the 10th Amendment that begins with the words “Any powers not delegated to the United States” if Congress had all powers.

[historyrepeatz]

Was the student loan provision in the Senate approved HC bill? I don’t think it was. If reconiliation of the House version isn’t reconsidered, does the student loan stuff go away?

[outofstyle]

I agree with Rush. The socialists are creating a behemoth government with extraordinary unconstitutional power. We must seize control of it in the next 4 years and use all of these newly created illegal tricks to castrate these liberal groups. This article from the NEJM makes me nominate the AMA as first on the chopping block.

[Leisler]

Harvard, Yale. Typical.

[mcswan]

Some, or even many, of the individual elements of this bill will be found to be unconstitutional. That doesn’t matter an iota to the democrats. The vote that permits govenment to control and regulate healthcare will remain, and they will build on that year by year until private health insurance disappears and we have a single payer system. They are Marxist b******s through and through. And just like a fungus they will keep growing and irritating the crap out of us.

[NoobRep]

This article is so far off base I’m wondering what this guy was smoking when he wrote it. Hey Tapper, eat this one buddy. Bailey vs Drexel Furniture.

http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html

[HangnJudge]

[SirJohnBarleycorn]

This is moronic reasoning.

He claims it’s not a “mandate” because the penalty for non-compliance is called a “tax”? Even a ten-year-old can see through such sophistry.

And because the mandate doesn’t apply to certain people, like the military, it’s misleading to call it an “individual” mandate?

So I was looking for an actual legal argument in this article. I found none and instead found patently silly semantic nonsense.

[orinoco]

There seems to be no limit on the power of this government. They find away around everything. After this healthcare/takeover fiasco it is clear we are no longer a government of the people for the people and by the people. We are being controlled and manipulated.

[apillar]

I'm guessing the end result of this will be that people who don't have insurance, which tend to be younger (20 somethings) and know if they file a tax return will get stuck with a fine, they will just not file a tax return. Then the government will be out both the fine and tax collection or have to spend a fortune trying to track them down.

I know when I was around 20 and rather irresponsible and rebellious, there is no way I would have filed a tax return if I knew I was going to be fined for it. To make a confession, I didn't file a tax return until I got my first decent paying job out of college.

[outofstyle]

I’m wondering what this guy was smoking when he wrote it.

I'm thinking peyote.

[dalebert]

a tax and then a fine...then when the 4 years are up they the money will be gone...and my grandkids can be fined or lose property if they dont pay up...ok im good with that....but for my grandkids I am not ok with it....its just another way to take freedom away and take what one person works for to give to another......rip off..steall call it whatever you like....we have given the government too much power and they are destroying us with it....

[Crim]

Got an e-mail addy for this tool?

[OldDeckHand]

"When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation "

This is such incredibly tortured logic, it laughable.

Even when states - who have much greater power ceded to them by the US Constitution to effect law under the premise of establishing and promoting the general welfare - mandate that drivers purchase automobile insurance, they have an opt-out provision that normally allows the driver to secure a bond in lieu of coverage - kind of a financial statement of self insurance.

This federal law doesn't even permit that. As the law is written, Bill Gates MUST have insurance, even though for Gates - who clearly posses the financial wherewithal to pay for any medical trauma - it would be more cost beneficial to pay for medical care entirely out-of-pocket.

The Supreme Court has never established a Constitutional prerogative for the Federal Government to regulate non-activity as it relates to commerce. I don't expect the Roberts court to start anytime soon. It's like walking into a liquor store and the state taxing you for not buying the fifth of JD. It's not going to happen, no matter how greatly the author wishes it so.

[csmusaret]

Pretty much unrelated, but John Boehner just gave one hell of a speech on the floor of the House.

[trapped_in_LA]

What I think is so funny is that this will hit the lower income and young voters the hardest, just the ones that voted for the O. Well, you got what ya voted for, idiots.

[Crim]

Jack M. Balkin
Yale Law School
P. O. Box 208215
New Haven, CT 06520-8215

Courier Deliveries:
Yale Law School
127 Wall Street
New Haven, CT 06511

Phone: 203-432-1620
Fax: 203-432-4871

Please address all e-mail
about Balkinization to
jackbalkin@yahoo.com

Time to spam this prick...

[Recovering_Democrat]

oh for God’s sakes. I don’t give a damn how they dance around it...”it isn’t a mandate it is a tax you don’t have to pay if you buy insurance...” what a farce.

We basically have a mandate, by WHATEVER name you want to call it. So shove it, Mr. Doctor whoever you are.

We can still fight this damn communism.