Health care insurance mandate held unconstitutional.

• Author: Nevius, Alistair M.
• Position: Virginia

A federal district court has held that the health care reform legislation's mandate that individuals obtain health insurance is unconstitutional (Virginia v. Sebelius, No. 3:10-CV-188 (E.D. Va. 12/13/10)). In so holding, however, the court severed that mandate from the rest of the health care reform legislation and refused to enjoin enforcement, pending appeal of the case.

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The Patient Protection and Affordable Care Act, P.L. 111-148, enacted new Sec. 5000A, which requires U.S. citizens and legal residents to maintain minimum amounts of health insurance coverage, starting in 2014. Individuals who fail to maintain minimum essential coverage will be subject to a penalty. The Commonwealth of Virginia challenged the constitutionality of this provision in a suit against the secretary of the Department of Health and Human Services.

Virginia claimed that Sec. 5000A exceeds Congress's power under the Commerce and the General Welfare clauses of the U.S. Constitution. Specifically, Virginia contended that:

* The individual insurance mandate goes beyond the outer limits of the Commerce Clause in that it requires otherwise unwilling participants to purchase insurance from a private vendor, an economic activity "not historically subject to federal regulation under the Commerce Clause."

* The individual insurance mandate and associated penalty are not a legitimate exercise of congressional power to tax under the General Welfare Clause. Virginia also argued in the alternative that Sec. 5000A conflicts with the Virginia Health Care Freedom Act and therefore violates the Tenth Amendment.

In its opinion, the court said the constitutional issues boil down to "the single question of whether or not Congress has the power to regulate--and tax--a citizen's decision not to participate in interstate commerce." It noted that "[n]o reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce."

The Department of Health and Human Services argued that the individual insurance mandate is "well within the traditional bounds of Congress's Article I powers" and corrects systemic failures in the interstate health insurance market, which is within Congress's power to regulate under the Commerce Clause. The department also disputed...