Friday, April 27, 2012
Tweet[IWS] CRS: REQUIRING INDIVIDUALS TO OBTAIN HEALTH INSURANCE: A CONSTITUTIONAL ANALYSIS [6 April 2012]
IWS Documented News Service
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Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
Cornell University
16 East 34th Street, 4th floor---------------------- Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
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Congressional Research Service (CRS)
Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis
Jennifer Staman, Legislative Attorney
Cynthia Brougher, Legislative Attorney
Edward C. Liu, Attorney Adviser (General)
Erika K. Lunder, Legislative Attorney
Kenneth R. Thomas, Legislative Attorney
April 6, 2012
[full-text, 42 pages]
Summary
As part of the Patient Protection and Affordable Care Act (ACA), P.L. 111-148, as amended,
Congress enacted a “minimum coverage provision,” which compels certain individuals to have a
minimum level of health insurance (i.e., an “individual mandate”). Individuals who fail to do so
may be subject to a monetary penalty, administered through the tax code. Congress has never
compelled individuals to buy health insurance, and there has been significant controversy and
debate over whether the requirement is within the scope of Congress’s legislative powers.
Shortly after ACA was enacted, several lawsuits were filed that challenge the individual mandate
on constitutional grounds. While some of these cases have been dismissed for procedural reasons,
others have moved forward. These challenges have now reached the Supreme Court. During the
last week of March, the Court heard arguments in HHS v. Florida, a case in which attorneys
general and governors in 26 states as well as others brought an action against the Administration,
seeking to invalidate the individual mandate and other provisions of ACA. Besides evaluating the
constitutionality of the individual mandate, the Court is examining the question of whether the
Anti-Injunction Act currently prevents the Court from ruling on the merits of the case. It also is
considering the extent to which the minimum coverage provision can be severed from the
remainder of ACA, if it is found to be unconstitutional. Finally, the Court is analyzing ACA’s
expansion of the Medicaid program and whether it unconstitutionally “coerces” states into
compliance with federal requirements. This last issue will be addressed in CRS Report R42367,
Federalism Challenge to Medicaid Expansion Under the Affordable Care Act: Florida v.
Department of Health and Human Services, by Kenneth R. Thomas.
While there is no specific enumerated constitutional power to regulate health care or establish a
minimum coverage provision, Congress’s taxing power or its power to regulate interstate
commerce may be pertinent. With regard to the taxing power, the requirement to purchase health
insurance might be construed as a tax and upheld so long as it was found to comply with the
constitutional restrictions imposed on direct and indirect taxes. On the other hand, opponents of
the minimum coverage provision may argue that since it is imposed conditionally and may be
avoided by compliance with regulations set out in the statute, that the requirement may be more
accurately described as a penalty. If so, the taxing power alone might not provide Congress the
constitutional authority to support this provision.
In evaluating the minimum coverage provision under the Commerce Clause, one of several issues
that may be examined is whether the individual mandate is a regulation of economic activity.
Some argue that the requirement to purchase health insurance is economic in nature because it
regulates how an individual participates in the health care market, through insurance or otherwise.
Conversely, others argue that forcing individuals to participate in commerce in order to regulate
them goes beyond the bounds of the clause.
This report analyzes certain constitutional issues raised by requiring individuals to purchase
health insurance under Congress’s authority under its taxing power or its power to regulate
interstate commerce. It also addresses whether the exceptions to the minimum coverage provision
to purchase health insurance satisfy First Amendment freedom of religion protections. Finally,
this report discusses some of the more publicized legal challenges to ACA, as well additional
issues that are currently before the Court.
Contents
Background...................................................................................................................................... 1
Constitutional Authority to Require an Individual to Have Health Insurance................................. 2
Taxing Power............................................................................................................................. 3
Limits on the Taxing Power ................................................................................................ 5
Supreme Court Review ....................................................................................................... 8
Power to Regulate Commerce ................................................................................................... 9
Supreme Court Review ..................................................................................................... 15
Religious Exemptions to the Requirement to Have Health Insurance........................................... 16
Constitutional and Statutory Rules Regarding Religious Exercise ......................................... 16
Legal Analysis of Religious Exemptions for the Minimum Coverage Provision.................... 17
Is a Religious Exemption Constitutionally or Statutorily Required? ................................ 17
Is a Religious Exemption Constitutionally Permissible? .................................................. 19
Legal Challenges to the Minimum Coverage Provision ................................................................ 21
Eleventh Circuit: Florida v. HHS...................................................................................... 22
Sixth Circuit: Thomas More Law Center v. Obama .......................................................... 25
Fourth Circuit: Virginia ex rel. Cuccinelli v. Sebelius and Liberty v. Geithner ................ 27
Additional Issues Before the Supreme Court................................................................................. 28
Anti-Injunction Act.................................................................................................................. 29
Individual Mandate and Severability....................................................................................... 31
Background ....................................................................................................................... 31
The Florida Case............................................................................................................... 34
Supreme Court Arguments ................................................................................................ 35
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# posted by SBasefsky : 8:50 AM
