Policy Documents

Research & Commentary: The Obamacare Individual Mandate

March 26, 2012

The most heavily debated element of President Barack Obama’s Patient Protection and Affordable Care Act (PPACA) is the constitutionality of the individual health insurance mandate, which requires every citizen, with few exceptions, to purchase health insurance. The matter was debated by several district and appellate courts, and the U.S. Supreme Court will hear arguments at the end of March to determine whether the mandate is constitutional.

The federal government and advocates of the individual mandate say its constitutionality is based upon the Commerce Clause, which gives the federal government the power to regulate commerce among the states. The federal government also argues the individual mandate and its penalties are constitutional based upon the Taxing and Spending Clause, which grants the federal government the authority to “lay and collect taxes.”

Opponents of the mandate, including the 26 states that are legally challenging the federal health care law, disagree with both of these arguments. When seeking legislative support for the law, the Obama administration itself said the penalty of the individual mandate was not a tax, they note. Had the administration called it a tax, the law might not have been passed. As Paul Clement, former solicitor general to President George W. Bush, said, the Court should not deem it appropriate “to enact legislation that would not have passed had it been labeled a tax and then turn around and defend it as a valid exercise of tax power.”

Opponents also argue the individual mandate is in violation of the Tenth Amendment, which limits the federal government to powers explicitly expressed in the Constitution. Although the Commerce Clause grants the federal government authority to regulate commerce, it does not confer the authority to require citizens to partake in commerce, they note.

As of February 29, 43 amicus briefs had been filed opposing the constitutionality of the individual mandate, against 28 contending it is constitutional. According to a recent Gallup Poll, 72 percent of the public believe the individual mandate is unconstitutional, including 54 percent of those who otherwise approve of the law.

The following documents offer additional information on the individual mandate.

Citizens Council for Health Freedom: Amicus Briefs Against Obamacare In Favor
http://www.hamiltonstrategies.com/events.php?docid=521
In a press release, the Citizens Council for Health Freedom notes the majority of amicus briefs filed against the Patient Protection and Affordable Care Act find the law, and specifically the individual mandate, unconstitutional.

Congressional Budget Office: Effects of Eliminating the Individual Mandate to Obtain Health Insurance
http://heartland.org/sites/all/modules/custom/heartland_migration/files/pdfs/28992.pdf
A report from the Congressional Budget Office concludes eliminating the individual mandate would save taxpayers billions of dollars.

Congressional Budget Office: Four Million Americans Will Pay Individual Mandate Fine
http://news.heartland.org/newspaper-article/cbo-four-million-americans-will-pay-individual-mandate-fine
Writing in The Heartlander digital magazine, Loren Heal discusses a Congressional Budget Office report indicating four million Americans will pay a fine due to the individual mandate by 2016.

The Ineffectiveness of Individual Mandates
http://heartland.org/policy-documents/ineffectiveness-individual-mandates
In a Heartland Institute Research & Commentary, Legislative Specialist Matthew Glans explains why individual mandates in health insurance are difficult to enforce and rarely produce the intended results.

Obamacare Individual Mandate Unlikely to Work
http://news.heartland.org/newspaper-article/obamacare-individual-mandate-unlikely-work
Writing in Investor’s Business Daily, Merrill Matthews of the Council for Affordable Health Insurance explains why the individual mandate is unlikely to cover the number of uninsured individuals Democrats and the Obama administration claim it will.

States, Citizens Fight Obamacare Individual Mandate
http://news.heartland.org/newspaper-article/2010/11/08/states-citizens-fight-obamacare-individual-mandate
Sarah McIntosh, vice president of Missouri News Horizon, reports on efforts in the states to combat the individual mandate and maintain state sovereignty.

Can States Opt Out of the Individual Mandate?
http://heartland.org/policy-documents/can-states-opt-out-individual-mandate
Heartland Institute Research Fellow Benjamin Domenech debunks a rumor that states will have the flexibility to opt out of the individual mandate.

Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information, on this subject, visit Health Care News at http://news.heartland.org/health, The Heartland Institute’s website at http://heartland.org, and PolicyBot, Heartland’s free online research database at www.policybot.org.

If you have any questions about this issue or the Heartland website, contact Heartland Institute Legislative Specialist Kendall Antekeier at kantekeier@heartland.org or 312/377-4000.