Mandating Health Insurance


A great national debate is about to be played out in the Supreme Court. The question presented is whether we may all be required to buy insurance under the Obama health-care law, the Patient Protection and Affordable Health Care Act of 2010. Can those citizens who refuse to buy such insurance be penalized? That issue has split lower federal courts and is on its way up.

The question turns on the powers delegated by the Constitution to the federal government, particularly the Commerce Clause as reinforced by the Necessary and Proper Clause. Alternatively, the government’s power to tax may supply an answer. Before consideration of the new law, a bit of history.

We begin at the beginning: the old Articles of Confederation of 1777–78 did not include a grant to the federal government of power over domestic commerce. The omission was soon lamented. In 1784, Congress appealed to the states to correct the position, saying that “few objects of greater importance can present themselves to [the states’] notice.... [Commerce] is the constant source of wealth and incentive to industry; and the value of our produce and our land must ever rise or fall in proportion to the prosperous or adverse state of trade.” That is, the impact of trade on the value of produce and land was grasped. In that light, the Constitution as ratified in 1788 empowered Congress to “make all laws which shall be necessary and proper” to “regulate commerce...among the several states.” The document was...

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About the Author

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).