Constitutional Challenges to Health Care Reform

Does the United States Constitution allow Congress to force people to purchase a product (health insurance) from a private corporation, and fine them or tax them if they refuse?

The answer is a matter of debate, but there is little dispute that such an act of Congress would be unprecedented.

Sheldon Laskin, an Adjunct Professor at the University of Baltimore Law School who has argued that the Constitution forbids such a move, describes the new and dangerous can of worms it would open up:

“If Congress can compel the purchase of insurance from a for profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it.

“The auto industry is collapsing? Forget Cash for Clunkers, just order Americans to buy cars or tax them if they don’t. Obesity crisis? Order Americans to join health clubs, or tax them if they don’t. If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses.”

Outlandish? Consider this: Many Supreme Court observers expect a ruling, quite possibly on Jan. 12, 2010, in the case of Citizens United vs. Federal Elections Commission that would lift all limits on corporate funding of elections, meaning that national and international corporations could swamp the election system with so much money that any influence from actual citizens would be utterly negated.

If you were a corporation and you owned the legislature, and laws were being passed requiring people to purchase products, and you owed it to your shareholders to maximize profits, what would you feel compelled to do?


The U.S. Department of Justice recently claimed that, for purposes of keeping illegal government-funded activities secret from the public and the courts, telecommunications corporations were effectively part of the executive branch of the government.

Might the same argument not be made, in the none-too-distant future, about “health” corporations funded by government mandate? If the federal government can force me to give money to major campaign funders, where does the government stop and the private business begin?

Of course most of those arguing that the government cannot do this are libertarians and/or opponents of the Democratic Party, since so many on the left who ought to be raising these concerns have sold their souls to that party and this is a Democratic proposal.

But the argument against an individual health insurance mandate is not an argument against a civilized healthcare system. The government can tax the public and/or corporations and pay for healthcare, even with those payments going to private businesses, without running up against the same Constitutional hurdles or the same concerns from observers wary of creeping corporatism.

The Constitution provides Congress with certain enumerated powers in Article I and explicitly leaves all other powers to the states or the people in the 10th Amendment.

So, the constitutional question, for those who still care whether laws are constitutional, is whether the power to force you to buy a horrible product you do not want from a disreputable monopolistic corporation that pays regular bribes to your elected representatives in the form of campaign “contributions” is specifically listed anywhere in Article I.

Article I gives Congress the power to “lay and collect taxes” as well as the power to “regulate commerce … among the several states.” Interpretations of these clauses have varied.

Predictions as to where the current Supreme Court would come down vary. I find Laskin’s arguments the most persuasive. Here’s a lengthy two-sided debate and here are the cherry-picked opinions offered by Sen. Max Baucus (D., Blue Cross Blue Shield).

Is mandated health insurance commerce? It is not, like all other commerce, something that can be resold. It is not, like all other commerce, optional, if you force everyone to purchase it.

Is it interstate? That concept has perhaps been loosened enough to cover anything that counts as commerce, and the new legislation may allow the sale of health insurance across state lines despite candidate Obama’s argument that doing so would create a race to the bottom in quality and accountability.

But you can’t have interstate commerce with something that isn’t commerce at all.

Is mandated health insurance a tax? President Obama swears it isn’t. He calls its enforcement mechanism a “fine.”

But perhaps that’s for public consumption, whereas courts will be told it’s a tax. Is it? How can it be, when it is not a payment to the government? If it is, there is the problem that Article I requires that “imposts and excises shall be uniform throughout the United States” which this would not be.

But the Constitution forbids the ongoing warrantless spying programs. The Constitution does not allow presidents to launch wars. In the Constitution everyone has the right to habeas corpus.

We have cases in which the Supreme Court has ruled our general public practices unconstitutional, and yet they blissfully proceed. Ultimately, the question is whether we will stand for fascistic policies or fascistic interpretations of the Constitution. Personally, I will not stand for either.

David Swanson is co-founder of and author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press. You can order it and find out when tour will be in your town by visiting

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12 Responses for “Constitutional Challenges to Health Care Reform”

  1. Social comments and analytics for this post…

    This post was mentioned on Twitter by ThePublicRecord: Legal Challenges to US Health Care Reform

  2. BLAKEINWV says:

    How could you argue that mandating the purchase of insurance (health) is unprecedented when nearly every American driver is required to have automobile insurance?

  3. KTinIL says:


    The difference is that auto insurance is mandated by the individual states, and they have that ability under their broad police power. The federal government does not have any police power, except as interpreted through the commerce clause.

  4. stevelaudig says:

    No one makes you drive. You can arrange your life in such a way as to not drive. The compulsory premium is a “tax” paid to a private party? There’s a due process taking of my property and making it someone else’s property that I am not clearly describing that troubles me and warrants further examination.

  5. Lloyd G. says:

    Not that anyone in DC cares about the Constitution anymore…

  6. AlexHidell says:

    I think that forcing an indegent or unemployed person to pay for something they cannot afford is a violation of the Eighth Amendment. An unreasonable fine of $750 per person is another slap in the face to the poor.

    Current healthcare costs are draining the economy, 70% of GDP is ‘consumption’,

    Health Care Costs Curb Holiday Spending

    so slamming the poor one more time doesn’t seem to be a consideration of the wealthy and corporations as long as they finagle another tax break out of the process.

  7. dobropet says:

    Interesting, is that why nominating Sotomayer was so crucial, getting closer to their leftists agenda via court rulings?

    No, the constitution does not provide for any one single person to be forced to purchase health insurance. The meaning of “welfare” in the constitution does not apply to healthcare as some have attempted to define it. In order for such a belief to solidify you’d have to assume that healthcare is a right, which it is not. Those rights are already define within the consitution- life, liberty, & the pursuit of happiness- and the inalienable rights, those that can be enjoyed without destruction or abuse of anothers rights.

    Here’s a good argument of healthcare as to it’s not being a right,

    “Medical care is not a right. Medical care is a service provided by doctors and others to individuals who want to purchase it. A patient presents to the doctor with a request for care. The fact that the patient has a serious condition – even a life threatening one – does not entitle him, as his right, to the services of the doctor. To claim that he does means that doctors and others who provide these services have no rights, or that society can deliberately ignore these rights for the “greater good”. […] If the exercise of a patient’s so-called “right” to healthcare imposes obligations on taxpayers to pay for it and healthcare practitioners to provide it, then it is not a right, but an attempt to enslave one part of the population for the benefit of another part. In reality, these types of so-called “rights” are offered to groups of Americans by politicians in exchange for votes. Claims on humanitarian concerns are merely a fig leaf over a naked power grab by the state.” -Maria Martins

    Which also covers your information on the supreme court’s future ruling elsewhere stated in this piece.

  8. AlexHidell says:

    “There is a middle-class tax time bomb ticking in the Senate’s version of President Obama’s effort to reform health care. ”

    A Less Than Honest Policy

    The country can’t afford this bill as it is currently set up. Change it NOW !

  9. michael ace says:

    Auto Insurance is not really mandatory—-How many blind people carry auto insurance—-how many 7 year olds—-how many with no drivers license or no cars—-if you have no use for a product or cant afford it—-You Don’t Buy It—-Next will we see Mandotory Extended Warrenty Protection on Everyone who owns a car or Mandatory Pet Health Care on all Licensed Pet Owners

  10. DavidW says:

    Blake, having to buy healthcare is not the sames as buying car insurance when you say why not when all drivers have to pay it? The simple facts is, Not even HALF of all Americans even drive! So do they have to now pay car insurance because they don’t drive? Just wait stupid, wait until some corporation comes along wanting to get rich and pays off enough money to bribe politicians to put a chip in you;re ass to track you to make them rich saying its better we know what everyone is doing saying for the good of the country. Or stick microphones or cameras in you’re bedroom and through out the house. You idiots have NO CLUE as to what you just opened up! But you can mark my words, in 10 years from now you morons will be crying about it just as you are now about Bush and the Patriot Act. But at the time when 911 truth movement was going on, 2011-2008, not a damn liberal hardly to be found against Bush! Not until Obama came into the picture you idiots said nothing about it! Because it was not part of you’re gimme gimme free free free progressive agendas! Fact is liberals are the dumbest people to walk the face of the planet and ALWAYS cry about everything that does not go their way. Its pathetic!

  11. DavidW says:

    My next question is how can you say everyone has to buy this insurance, yet leaves many exempt from having to pay for it themselves? That is working class slavery! And slavery was abolished under Lincoln!

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