Health care reform and the general welfare clause, Part II

As the health care reform debate has raged on and bills have taken shape in the Senate and even passed the House, the so-called individual mandate has become a central part of most reform packages under consideration. This is a different twist from the angle under which I considered the constitutionality of health care reform in the article Health care reform and the general welfare clause, and, constitutionally, it must be a deal breaker.

It is a settled constitutional fact that Congress can spend federal tax revenues on any program that it feels advances the general welfare, whether the form of that spending takes the form of direct grants, tax credits, tax deductions, or subsidies is of little consequence constitutionally. If Congress wants to set up incentives to give people tax deductions for buying health insurance, for example, or send subsidies directly to people / families who make less than four times the federal poverty rate, then it is acting within its constitutional prerogative.

However, there is no constitutional power delegated to Congress allowing it to impose fines on people for not buying health care insurance. There is a big difference, philosophic and constitutional, between incentivizing people towards desired behaviors and punishing them for not following a prescribed mandate. Article 1, Section 8 and the Fourteenth Amendment form the boundaries within which Congress may legislate, and outlawing a lack of health care insurance is simply not within those boundaries.

This is undoubtedly a power of a State, but not a delegated power of the federal government.