The Individual Mandate and the Supreme Court

by Kathryn Bailey

Everyone seems to have an opinion on the health care reform law, and in particular the individual mandate to purchase health insurance. There are many different ways for people to structure their argument for or against the principle of the requirement. Some cite the moral imperative the United States has to provide health care for its entire population, as a modern, developed nation. Some people look at it from an economic perspective and reference data showing that insuring as many people as possible, adding currently underinsured, healthy, people to the risk pool to offset costs for those who truly cannot go without insurance. Others stick to partisan political rhetoric and simply say that the government should not intrude upon the personal decisions of Americans. These people counter the law in terms of broad principles that suggest a catastrophic loss of freedom.

However, after years of political wrangling and herding and untold costs in lobbying and legislating, the entire circus will likely come down to the opinion of one or two individuals. Setting aside debate over whether the mandate is strong enough (i.e. the penalties for not complying not being compelling enough), many policy experts agree that it is a starting point for bringing more Americans into the fold, especially the so-called “young invincibles” who do not participate in the system.

On January 31, Florida district court Judge Roger Vison held the individual mandate, and thus the entire health care reform law, unconstitutional. This brought the tally in federal courts to 2-2; two district judges have ruled against it, and two for it. The odds are strongly in favor of the constitutional question ending up in the Supreme Court sometime in the next year, again with the individual mandate being front and center.

Origin of the Mandate

Under the law, state-run health insurance exchanges must be operational by January 1, 2014. They are intended to provide a marketplace where individuals, small businesses and others can purchase health insurance policies. Everyone would be required to demonstrate evidence of coverage, either through an individual policy, employer provided coverage, or a government program. The federal government would assist those who cannot afford insurance with subsidies.

The concept of the individual mandate was originally conceived and promoted by Republicans. President Nixon was interested in the idea during the 1970’s, and was championed in the 1980’s by President George H.W. Bush. Under his proposal, individuals would be mandated to buy catastrophic health insurance. The cost of the policy would be adjusted or subsidized based on the individual’s income. The next Republican to push the concept was Bob Dole, in what essentially defined the anti-Clinton health reform campaign in the early 1990’s. It was brought back by Republican Governor Mitt Romney of Massachusetts and instituted in that state’s health reform overhaul. During the 2009-2010 health reform debates, it was a centerpiece of the bipartisan bill drafted by Senators Ron Wyden (D-OR) and Bob Bennett (R-UT).

The Basis of Vinson’s Ruling

All of this makes it incredibly ironic that as soon as it was clear that President Obama would be able to declare victory on this legislation, Republicans began taking down the individual mandate on the basis of it being an unconstitutional regulation of economic inactivity. This argument holds that the Commerce Clause of the Constitution gives Congress the authority to regulate economic activity, but not the absence of economic activity. In other words, if a person chooses not to buy insurance, their non-commercial activity is non-regulated.

The view of those in support of the mandate holds that even if individuals choose not to purchase an insurance policy, they are still participating in the health care economic market by virtue of the fact that they cannot choose whether or not to consume care throughout their lives. If the cost does not accrue to them personally, it is borne by the government and, in particular, the state. This reasoning was applied by California Attorney General Kamala Harris. She stated that the care of the 8 million uninsured Californians (nearly a quarter of those under age 65) ultimately comes at a huge cost to the state, saying that “[t]he bottom line is undeniable.”

Justice Kennedy

Conventional wisdom states that Justice Anthony Kennedy will likely be the swing vote in the Supreme Court. Experts seem to agree that it is difficult to determine with certainty how Justice Kennedy will vote, but there are a few clues. First, in 2005, Kennedy upheld a federal regulation of marijuana grown at home but never sold on the drug “market,” suggesting that noncommercial activity can be regulated. However, he may be sensitive to the fact that this could set a risky precedent; namely that if government is permitted to mandate individuals to take part in a private, commercial activity, this authority could be used to justify a requirement to purchase other types of insurance, gym memberships, or certain types of cars, under the auspices that doing so would decrease a burden on the government and general populace.

Louis Seidman, a professor of consititutional law at Georgetown University told the Washington Post that “[Kennedy] is likely to be affected by what the political atmosphere is at the time. It’s going to matter to him whether it looks like the whole law is a mess and needs to be put out of its misery, or whether it looks like it’s actually starting to work.”

Justice Scalia

Another view on how this case will play out in the Court is gaining currency. Some experts have expressed a view that the votes conservative members of the Supreme Court, such as Justice Antonin Scalia, should not be taken for granted. Scalia sided with the majority opinion in the 2005 marijuana case, which was in line with a broad interpretation of a commerce clause. In his concurring opinion, he said that not only did the legislative branch have the “power to regulate activities that have a substantial effect on interstate commerce,” but also it had the power to extend itself into “those measures necessary to make the interstate regulation effective.”


An op-ed in the New York Times endorsed the view that intellectually at least, conservative members of the court may have a difficult time finding leeway to disagree with the concept of a mandate in this case. The author, Laurence Tribe, believes that justices like Scalia will agree that the “distinction [between activity and inactivity] is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system.”

Continuing this logic, for the Supreme Court to decide against the constitutionality of the individual mandate, the majority would need to rule on the basis of politics. The individual mandate is certainly complicated issue with implications that may lead to more complicated issues, but perhaps it is not such an unclear one when the history of the court and faith in the justice system is taken into account.


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