Law and health

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Erwin Chemerinsky is dean of the UC Irvine School of Law.

Are the healthcare bills pending in the House and Senate unconstitutional?

That’s what some of the bills’ critics have alleged. Their argument focuses on the fact that most of the major proposals would require all Americans to obtain healthcare coverage or pay a tax if they don’t. Those too poor to afford insurance would have their health coverage provided by the state.

Although the desirability of this approach can be debated, it unquestionably would be constitutional.

Those who claim otherwise make two arguments. First, they say the requirement is beyond the scope of Congress’ powers. And second, they say that people have a right to be uninsured and that requiring them to buy health insurance violates individual liberty. Neither argument has the slightest merit from a constitutional perspective.


Congress has broad power to tax and spend for the general welfare. In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress’ power. The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid.

Congress has every right to create either a broad new tax to pay for a national healthcare program or to impose a tax only on those who have no health insurance.

The reality is that virtually everyone will, at some point, need medical care. And, if a person has certain kinds of communicable diseases, the government will insist that he or she be treated whether they are insured or not. A tax on the uninsured is a way of paying for the costs of their likely future medical care.

Another basis for the power of Congress to impose a health insurance mandate is that the legislature is charged with regulating commerce among the states. The Supreme Court has held that this means Congress has the ability to regulate activities that have a substantial effect on interstate commerce. A few years ago, for example, the court held that Congress could prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.

The relationship between healthcare coverage and the national economy is even clearer. In 2007, healthcare expenditures amounted to $2.2 trillion, or $7,421 a person, and accounted for 16.2% of the gross domestic product.

The claim that individuals have a constitutional “right” to not have health insurance is no stronger than the objection that this would exceed Congress’ powers. It is hard to even articulate the constitutional right that would be violated by requiring individuals to have health insurance or pay a tax.


Since the 19th century, the Supreme Court has consistently held that a tax cannot be challenged as an impermissible taking of private property for public use without just compensation. All taxes, of course, are a taking of private property for public use, and a tax to pay for health coverage -- whether imposed on all Americans or just the uninsured -- is certainly something Congress could impose.

The claim that an insurance mandate would violate the due process clause is also specious. Most states have a requirement for mandatory car insurance, and every challenge to such mandates has been rejected. More important, since 1937, the Supreme Court has constantly held that government regulations of property and the economy will be upheld as long as they are reasonable. Virtually every economic regulation and tax has been found to meet this requirement. A mandate for health coverage would meet this standard, which is so deferential to the government.

Finally, those who object to having health coverage on freedom-of-religion grounds also have no case. The Supreme Court has expressly rejected objections to paying Social Security and other taxes on religious grounds. More generally, the Supreme Court has ruled that individuals do not have a right to an exemption from a general law on the ground that it burdens their religion.

There is much to debate over healthcare reform and how to achieve it. But those who object on constitutional grounds are making a faulty argument that should have no place in the debate over this important public issue.