Is The Individual Mandate Unconstitutional?

Tue, 23 Mar 2010 22:38:31 +0000

The big news story today seems to be that more than a dozen state attorney generals are putting together a legal challenge to the individual mandate in the recently passed health care reform.  Here's what Bill McCollum of Florida said:

"It forces people to do something -- in the sense of buying a health care policy or paying a penalty, a tax or a fine -- that simply the constitution does not allow Congress to do," McCollum said at a news conference in Tallahassee.

McCollum, who is seeking the Republican nomination to run for Florida governor, said the healthcare reforms would add $1.6 billion to Florida's spending on the Medicaid health program for poor people.

I'm no legal scholar, but I cannot see how handling the mandate through the 1040 tax form is any less constitutional than, say, tax deductibility of IRA contributions.  Start from a baseline where everyone is presumed to have contributed to the maximum amount to an IRA.  The IRA deduction operates as:

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If no evidence of a retirement contribution is provided, add $x to taxable income.  If evidence of a retirement contribution in the amount of $y is provided, add $x minus $y to taxable income. 

So tell me what's different about treating the individual mandate as follows.  Start from a baseline where everyone is presumed to have obtained private health insurance.  The individual mandate can operate as:

If no evidence of health insurance is provided, add $x to taxable income.  [$x might depend on state of residence, number of dependents, and the level of income.] 

Everyone is then presumed to be enrolled in Medicaid unless they show evidence to the contrary.  The tax code already conditions on choices people have made.  Prefunding health expenditures seems little different from prefunding retirement income.  If a court struck down the individual mandate, how could it not strike down all of the other aspects of the tax code that condition on individual choices?