In case you missed it, which is likely given that the WSJ editorial page would be few people's must read on a holiday weekend, Orrin Hatch says that the individual mandate is unconstitutional
First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.
Jack Balkin responds:
Congress's powers to impose an income tax, a penalty tax, or an excise tax are unproblematic. The House and Senate versions of the individual mandate are clearly within Congress's powers to tax and spend for the general welfare. Nor are they direct taxes that must be apportioned by state. Under the 16th Amendment taxes on income need not be apportioned no matter what the source of the income; excise and penalty taxes are not taxes on real estate and they are not capitation or "head" taxes, taxes that are levied on the population no matter what they do. Therefore they are not direct taxes within the meaning of the Constitution and existing precedents.
Either the House or the Senate version of the tax is clearly constitutional under existing law. It is not even a close question.
The reason why Senator Hatch does not tell you what is in the bill in his op-ed is because once you read it, you will see that what he says is not true. The individual mandate is structured as a tax. And the tax is perfectly constitutional under Congress's powers to tax and spend for the general welfare.
That doesn't make the individual mandate, absent the choice of an alternative public option so that people aren't forced to send their money to private insurers who have been abusing their trust with the American people for all these decades for what will amount for many to little more than junk insurance, either a good political or policy solution. But it's not unconstitutional.
