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Would A Health-Care Mandate Be Unconstitutional?

by Conor Clarke

Interesting op-ed in the Washington Post about whether it would be constitutional for the federal government to pass an individual health-care mandate -- i.e., a requirement that everyone purchase a health-care plan. Of course, no mandate supporters take the position that the law should read, "purchase health care or face death by hanging." That would probably be a bad law. It would also, says the Post authors, be an unconstitutional law.

But mandate supporters do imagine using tax incentives to nudge everyone towards buying a plan, and the Post piece takes the position that it would also be unconstitutional to have tax penalties for individuals who don't. And that's where my intuition gets confused. So here are some legal questions: Tax benefits that encourage people to do certain things -- get married, buy a house, have kids -- can be described as disadvantageous to individuals who choose not to take part (or who are legally prevented from doing so). But the United States is filled to the gills with these tax carrots. So does the law operate only in one direction here? Is it unconstitutional to face a tax penalty if you don't do something ("purchase health care") but just fine to enjoy a tax benefit if you do ("purchase a house")?

I understand that the law is filled with one-way ratchets. And I understand why. But if that's how the law works in this case, why can't someone sneak a mandate in through the constitutional back door? You could have a "health-care head tax" of $500 per person (or whatever), and you could rebate that amount to the individuals who purchase plans. This would have the effect of punishing everyone who doesn't purchase a health-care plan, but it would be indistinguishable from lots of junk that already litters the tax code.