Ask most conservatives for their opinion on the individual mandate to purchase health insurance, and they will likely tell you that it is unconstitutional. They also will likely tell you that nothing similar has ever been tried before and this is a vast overreach of congressional power. The first point will be resolved in due time through the court system. The second point can be addressed more concretely.
It's important to understand that the "mandate" actually has two component pieces. The first component is the rule "everyone must obtain health insurance (with a few exceptions)." The second component is the penalty for failure to comply with the first: any taxpayer who doesn't obtain health insurance will pay an additional tax (for simplicity, let's say it's always going to be $700). The "mandate" cannot function without the tax component. The tax component, however, can function entirely independent of the mandate and the end result, economically, is identical. In this sense, the tax component of the mandate is, effectively, the mandate itself. When viewed as such, the conservative argument that "nothing has ever been tried like this before" is clearly false.
Consider, for example, the mortgage interest deduction. There is no law that says "all taxpayers must have a mortgage on their primary residence." There is, however, a tax provision that says if a taxpayer has a mortgage on his primary residence and itemizes his taxes, the taxpayer will pay less in taxes than he would absent a mortgage (assuming the taxpayer has taxable income after all other deductions). Because the mortgage interest deduction is called a "deduction," nobody views it as anything akin to a mandate, but there's little difference economically. Individuals who get a mortgage will generally pay less in taxes and individuals who do not generally will pay more.
There is no doubt the home mortgage deduction is constitutional. There is also no doubt the health care mandate could have been written to precisely mirror the economic result of the mandate and leave no doubt as to its constitutionality. Congress could have provided that everyone's taxes would increase by $700 (whether they itemize or not), but that everyone who obtained health insurance meeting certain requirements would receive a deduction equal to $700. That's as much of a mandate as the current mandate, but it omits the provision of law that says "you must purchase health insurance."
For whatever reason, Congress did not take the approach described above. Instead, it relied on its Commerce Clause powers to enact the "you must buy health insurance" provision and used its Tax and Spend Clause powers to provide for the penalty. Perhaps Congress felt that an express provision requiring all Americans to purchase health insurance would have a greater impact on behavior than would merely taxing individuals who do not purchase health insurance. The purpose of the mandate is, after all, to decrease the uninsured population.
Congress may have also combined the "mandate" with the tax because its other largest health insurance law, Medicare, did the same. Under its Commerce Clause powers, Congress, in enacting Medicare, mandated that all working Americans contribute to the Medicare fund and then, under its tax powers, established the mechanism for contribution.
In any event, conservatives are incorrect to argue that nothing similar to a mandate has ever been attempted before. Indeed, there are many examples of economic mandates in place right now (the mortgage interest deduction is but one of many). There is even an existing health care plan in place right now (Medicare) using the exact same constitutional authority as the health insurance mandate (although Medicare does not use the word "penalty," a distinction not entirely inconsequential).
There are multiple ways a health insurance mandate could be structured which would achieve the precise same result as the existing health insurance mandate and which undoubtedly would be constitutional. While form certainly matters, the ease with which Congress could have achieved the same result undermines much of the vitriol directed towards the health insurance mandate. Of those Americans who disapprove of the mandate, I suspect most are not bothered by the technical form of the mandate so much as (1) the concept of a mandate and (2) the identity of the party which enacted the mandate. Nobody likes being told what to do, but many Americans really don't like "Nancy Pelosi and elitist Democrats" telling them what to do. Conservatives weren't overly upset when Mitt Romney proposed a mandate in Massachusetts or when Bob Dole and other Republicans in 1994 proposed a mandate as an alternative to "Hillarycare." In a less politicized era, the health insurance mandate likely would have been enacted with little fanfare.
Taxes serve two primary purposes: raise revenue and change behavior. The mortgage interest deduction and the health insurance tax are both designed to do the latter. The government doesn't want to raise revenue from the mandate. In fact, to the extent that a high percentage of Americans choose to pay the tax rather than obtain health insurance, the mandate will have failed and Congress would be forced to raise the tax to a level that did alter behavior. There are arguments that it's poor policy to use the tax code to change behavior, but there aren't many that such use of the tax code is unconstitutional.
While there is plenty of precedent for a "mandate," at least one enforced economically as is the case here, that still leaves the first question raised above: is the mandate as structured constitutional? Quite a bit hinges on the answer. The health insurance overhaul enacted by Democrats cannot function absent the mandate. Unfortunately, if the courts hold the mandate unconstitutional, Congress almost certainly is incapable of tweaking the mandate to conform to constitutional requirements. The votes simply do not exist to enact the mandate in any other form. Most legal experts believe the current mandate will withstand judicial scrutiny. We'll soon learn if the judiciary agrees.
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