Second of two parts examining the constitutionality of the Patient Protection and Affordable Care Act. Read part one here.
Article I, Section 8, Clause 1 of the Constitution states that “Congress shall have power to lay and collect taxes, duties, imposts and excises.” Unlike most regulations Congress issues under its commerce clause authority, the penalty for refusing to obtain insurance under the act is not prison or a fine, but a charge added to the scofflaw’s income tax. If the individual mandate arises under Congress’ tax power, then it’s a different story entirely from the commerce clause; the mandate is really no different than Social Security or Medicaid, programs similar to insurance in which everyone must participate in the form of mandatory taxes. The court upheld these programs in the 1930s, finding they served the “general welfare,” and it’s difficult to conceive of it suddenly overturning them in their entirety now.
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