Constitutional Controversy

Most involved in the world of health care are closely following the debate in federal courts about the constitutionality of the new health care law's requirement that all individuals purchase health insurance or pay a monetary penalty.

When a federal district court in Virginia ruled in December that the individual mandate was unconstitutional, it was the first court to so rule. Previously, two district courts have upheld the constitutionality of the individual mandate, stating that it was a valid exercise of congressional power under the commerce clause.

The debate won't end soon; other challenges in other district courts are winding their way through the court system. Inevitably, however, the matter will be decided by the United States Supreme Court, but experts don't expect the high court to hear a challenge on the reform law until 2012. The individual mandate doesn't kick in until 2014.

Reform law opponents say Congress cannot compel people to purchase health insurance against their will. Supporters say an individual's refusal to purchase insurance is an active decision that can be regulated, because every person needs health care at some point. Following are key arguments from those opposing and supporting the constitutionality of the individual mandate.

• Arguments that Congress did not have the power under the U.S. Constitution to enact the individual insurance mandate: Under the commerce clause of the Constitution, Congress has the power to regulate matters dealing with interstate commerce, including intrastate matters that have a substantial effect on interstate commerce. The Supreme Court has held that this power does not extend to regulation of discrete local matters, such as education and local crime, that are not inherently economic in nature.

  An individual's decision to purchase health insurance, or rather, the decision not to purchase health insurance, is a matter that is not inherently economic in nature. Rather, the decision not to purchase insurance is a decision to abstain from engaging in economic activity. The commerce clause does not allow Congress to pass laws regulating “inactivity.”