Ind. Professor Says Health Care Insurance Mandates are Constitutionally Sound

Opponents of health care insurance reform continue to hammer away at health coverage mandates that Congress is mulling. But David Orentlicher, a law professor at Indiana University School of Law-Indianapolis and co-director of the Hall Center for Law and Health, maintains that those opponents are pushing a wobbly argument. In a column for The Huffington Post, Orentlicher, also on the faculty of the Indiana University School of Medicine, concludes that such mandates are "justified by the Constitution's grant to Congress of a taxing power and a commerce clause power."

Orentlicher writes:

The taxing power is a well-established basis for enacting an individual mandate. Indeed, this country has had a tax-based mandate to purchase health care insurance for nearly 45 years. The Medicare program imposes a payroll tax on Americans as a way to fund coverage of their hospital costs once they reach age 65. People cannot opt out of Medicare; it is an obligatory system of health care insurance for one's senior years. Similarly, Congress can use a payroll tax to implement a mandate for individuals to purchase health insurance before they reach age 65. Under the House bill, for example, people will pay a 2.5 percent tax on their income unless they have health care coverage.

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Under the commerce clause, Congress has the power to regulate interstate commerce, and the health care insurance industry clearly falls within the Supreme Court's understanding of interstate commerce.

Orentlicher's entire piece is available here. For more on the debate over individual mandates, see analysis from Professors Erwin Chemerinsky and Robert A. Schapiro. 

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