Does Congress Have the Authority to Enact a Health Insurance Mandate Using its Power to Tax?

Most defenses of the constitutionality of the health insurance mandate rely on Congress’ powers under the Commerce Clause, an approach I criticized here. Some, however, also claim that Congress has the power to enact it under the Tax and Spending Clause (e.g. – Jack Balkin), which gives Congress the power to To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” There are two problems with this argument: the health care mandate is not a tax, and it does not promote the general welfare.

The so-called “tax” in the proposed health insurance mandate is really just a penalty for failing to comply with the requirement to purchase health insurance. It is even referred to as a “penalty” in some versions of the bill. If any regulatory measure with a monetary penalty for refusal to comply is considered a tax, then many of Congress’ other powers under Article I of the Constitution would be superfluous, since Congress could essentially regulate anything that fell within the subject matter of this clause simply by imposing money penalties on those who fail to comply, coupled with prison sentences for those who refuse to pay the money. For example, the Spending Clause gives Congress the power to tax in order to “provide for the common Defence.” Yet elsewhere in Article I Congress is also given the power to “raise and support armies” and to regulate the land and naval forces. Even more importantly, a financial penalty for failure to obey the law is not seen as a “tax” in ordinary language either today, or at the time of the Founding. The text and original meaning of the Constitution therefore cut against the view that the health insurance mandate is a tax.

Even if the mandate does count as a tax, it still can’t be justified under the Tax and Spending Clause because it does not pay the national debt, provide for the common defense, or promote the general welfare of the nation. It’s pretty obvious that the mandate doesn’t fall within the first two of these categories. It can only be defended by arguing that it promotes the “general Welfare.” In cases such as South Dakota v. Dole, the Supreme Court has defined “general welfare” as more or less anything Congress says it means. This is badly mistaken for several reasons. The most important problem is that it renders the rest of the Spending Clause itself superfluous. If the General Welfare Clause gives Congress the power to tax and spend for any purposes it likes, surely that includes the power to do so for purposes of providing for “the common defence” and paying the national debt. After all, Congress could surely have a plausible belief that paying the national debt and defense spending promote the general welfare in some sense. Yet these powers are separately enumerated, which implies that the General Welfare Clause must not be interpreted so broadly as to make Congress’ other powers redundant. As James Madison put it in Federalist 41, the broad interpretation of the General Welfare Clause also makes much of the rest of Article I redundant, as well:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

If the General Welfare Clause doesn’t give Congress the power to spend money on whatever purposes it thinks might be beneficial, what does it mean? In my view, James Madison was roughly correct to argue that the Clause simply gives Congress the power to spend money for purposes of implementing its other powers under Article I (the rest of Article I merely gives Congress the power to promote those objectives through regulatory measures, but not through spending). For a modern defense of that view, see this article by John Eastman. In addition, I think it’s also plausible to argue that the General Welfare Clause gives Congress the power to spend for unenumerated purposes that really do provide universal or nearly universal benefits. The example I like to use when I teach constitutional law is asteroid defense (which may not be covered by the “common defense” section of the Spending Clause, because that provision may refer only to protection against enemies, as opposed to natural phenomena). Whatever its other virtues, the health care mandate certainly doesn’t qualify on this ground, since it clearly imposes net harms on many people, such as those who would prefer not to purchase health insurance, those who don’t wish to purchase coverage as broad as the mandate requires, and others.