Thematic Areas

The Constitutionality of Mandates to Purchase Health Insurance

Mark A. Hall, JD

Paper Summary

Health insurance mandates have been a component of many recent health care reform proposals. Because a federal requirement that individuals transfer money to a private party is unprecedented, a number of legal issues must be examined.

This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate requiring employers to purchase health insurance for their employees. There are no Constitutional barriers for Congress to legislate a health insurance mandate as long as the mandate is properly designed and executed, as discussed below.

This paper also considers the likelihood of any change in the current judicial approach to these legal questions.

About the Author

Mark A. Hall, J.D., is the Fred D. and Elizabeth L. Turnage Professor of Law and Public Health at Wake Forest University School of Law and School of Medicine. He is also an Associate in Management at the Babcock School of Management, all of which are located in Winston-Salem, NC.

Prof. Hall received his law degree with highest honors at the University of Chicago and he completed a Robert Wood Johnson Foundation Health Finance Fellowship at Johns Hopkins University. He has been a visiting Professor at the University of Pennsylvania, Duke University, and University of North Carolina.

Prof. Hall specializes in health care law and public policy, with a focus on economic, regulatory and ethical issues. His present research interests include consumer-driven health care, doctor/patient trust, managed care regulation, genetics, and insurance market reform. He is the author or editor of fourteen books on health care law and policy, including Health Care Law and Ethics (7th ed. Aspen, 2007) and Making Medical Spending Decisions (Oxford University Press, 1997).