Question about the alleged health insurance "mandate

John Bickers bickersj1 at
Tue Mar 23 07:53:52 PDT 2010

As has been noted a couple of times on this list, the "individual mandate" is merely a tax matter.  People are required to maintain "minimum essential coverage" (which includes both current public and private plans).  The penalty for not doing so is $750 a year (per person, for a taxpayer with multiple dependents, but not more than three times the annual penalty).  The penalty escalates to the $750 level over time, beginning at $95 a year in 2014.  Inability to pay is an exception, as are incarceration, certain collaborative health care sharing ministries, other religious exemptions, and so on.  The penalty is a conventional tax penalty, administered by the IRS like any other, and not subject to a trial.  This last distinguishes it from cases like Lopez and Raich, where the government must prove beyond a reasonable doubt that one brought a gun near a school or possessed marijuana.  In fact, the health care reform act specifically eschews any criminal prosecution for failure to pay this increased tax.  
This still seems to me an ordinary bit of the arcane wonderland that is the tax code, and I fail to see how any attempt to overturn it would not have to start from the premise that the federal government's attempt to shape American society through tax incentives, surtaxes, and penalties, was forbidden by the Constitution.  And I thought we gave up that idea a long time ago.
John Bickers
Salmon P. Chase College of Law
Northern Kentucky University


From: conlawprof-bounces at on behalf of Humbach, Prof. John A.
Sent: Tue 3/23/2010 10:04 AM
To: Pohlman, Harold; Christopher Green; CONLAWPROFS professors
Subject: Question about the alleged health insurance "mandate

Just out of curiosity, has anyone looked at the new law to see whether it in fact imposes a legal obligation to buy health insurance? Or does it merely levy an excise tax on people who self-insure?


John A. Humbach, Professor of Law 
Pace University School of Law 
78 North Broadway 
White Plains, New York 10603 
Tel. 914-422-4239  -- jhumbach at 
personal homepage:

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