Tuesday, May 18, 2010

Constitutionality of the Individual Insurance Mandate--The Congressional Research Service Report

Crs logo As we've all heard lots about, the Patient Protection and Affordable Care Act will, among other things, require individuals to purchase health insurance or pay a penalty to the government if they do not. And this is what is being challenged in the lawsuit by state officials in Florida, thought to have the most traction of any of the proposed suits. Earlier this month, the Congressional Research Service issued this report, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis. The report analyzes likely arguments against the mandate brought under the Fifth and Tenth Amendments and also explores the sufficiency under the First Amendment of exceptions for certain religious groups.

The report analyzes whether Congress is empowered to impose this requirement through its taxing power and the power to regulate interstate commerce, and finds them somewhat difficult issues. Also potentially difficult, although not clearly a problem, is the religious exemption for some. Easier to reject, according to the report, would be challenges under the Fifth and Tenth Amendments. The report's analysis is thorough and very interesting. It's a good read for anyone concerned about this aspect of the new legislation.

MM

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