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Mandatory Health Insurance: Is It Constitutional?

Many policy makers and researchers believe that voluntary cost pooling of employees across small firms will make insurance affordable to these firms. This is possible because, on average, expected costs of employees at small firms are only slightly higher than large firms. We show that risk pooling across firms may not work as well as this conventional wisdom would suggest, because of large between-firm heterogeneity in employee characteristics at small firms. Even if a fair average premium is charged, risk pooling will be inadequate to induce many small-to-medium-sized firms with favorable health-cost distributions or low preferences for insurance to purchase insurance. This adverse selection problem is further. | AMERICAN CONSTITUTION s o c I E T Y FOR LAW AND POLICY Issue Brief Mandatory Health Insurance Is It Constitutional By Simon Lazarus December 2009 The American Constitution Society takes no position on particular legal or policy initiatives. All expressions of opinion are those of the author or authors. ACS encourages its members to express their views and make their voices heard in order to further a rigorous discussion of important issues. American Constitution Society 1333 H Street NW 11th Floor Washington DC 20005 Mandatory Health Insurance Is It Constitutional Simon Lazarus Recently some opponents of comprehensive health insurance reform have introduced a new contention - namely that a cornerstone of the reform bills pending before Congress a requirement that most individuals purchase and maintain health insurance coverage is unconstitutional. This issue paper addresses this claim. The paper reviews the relevant features of the legislation Congress rationale and record supporting the requirement generally called the individual mandate relevant constitutional provisions and judicial precedents and reform opponents arguments challenging the lawfulness of the mandate. The paper concludes that the mandate is lawful and clearly so - pursuant either to Congress authority to regulate commerce among the several states or to its authority to lay and collect taxes to provide for the General Welfare. 1 With respect to Congress interstate commerce authority the goals that drive this legislation - including achieving universal coverage eliminating adverse selection eliminating pre-existing conditions as a prerequisite for coverage facilitating broad-scale pooling of individuals not covered by group health plans and radically reducing costly emergency room visits by uninsured individuals - are eminently lawful objects for the exercise of that power. In the context of current health insurance market circumstances and the framework of the legislation the use of an individual .