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THE SCOPE OF
CONGRESS'S POWERS: TAXING AND SPENDING,

WAR POWERS,
INDIVIDUAL RIGHTS, AND STATE AUTONOMY

A. Regulation through Taxing, Spending, and the War Power
Page 294. After section 2 of the Note, add the following:
2a. Health care refonn and the individual mandate. Congress recently enacted, as part of comprehensive health care reform legislation, a requirement, beginning in 2014, that most individuals maintain a specified level of health insurance. See Patient Protection and Affordable Care Act of 2010, § 1501(b). Congress prefaced this requirement with a series of findings designed to support its conclusion that the individual responsibility requirement is "commercial and economic in nature," and thus that Congress acted within its commerce clause powers in enacting the mandate. The mandate is enforced through a penalty to be included with the individual's tax return for any year in which he does not maintain the required coverage. A number of states and individuals have filed suit challenging the individual mandate. One of their arguments is that Congress cannot use its commerce power to impose a penalty on individuals who refuse to buy a product or service. See Congressional Research Service, Requiring Individuals

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300 U. If they stay out of the risk pool. it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power. Siegel. 506 (1937). PENNumbra 94. at 191. The Constitutionality of the Individual Mandate for Health Insurance. [T]he Constitution inherently limits the reach of the Taxing and Spending Clause. L. e. no other constitutional authority is necessary.. 362 New England J. indeed.g. .most of whom are younger and healthier than average . By contrast. see Rivkin & Casey. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment. The Court. Ct. Balkin's debate with Rivkin and Casey is reprinted in A Healthy Debate: The Constitutionality of an Individual Mandate. under "form-pIus-pique federalism. This test is easily satisfied.join the national risk pool. ." Id. It is worth reemphasizing that the problem with basing the mandate on Congress's taxing power is not that such power cannot be used in a regulatory fashion. Successful reform requires that uninsured persons . If the individual mandate falls within Congress's power to tax and spend.. Rev.. In addition to arguing that Congress acted within its commerce power. Pa. 158 U.. 158 U." the Court "conceives of the activity as concerning a matter that the Constitution leaves to the states. Taxing uninsured people helps to pay for the costs of the new regulations." the Court might be "provoked by use of the Spending Clause after analogous use of the Commerce Clause or Section Five had been struck down. Pa... just as it does the Commerce Clause. Siegel identifies three different models of limitations on use of the spending clause.. add the following: To what extent do the limitations on Congress's powers under the commerce clause or the enforcement clauses of the Reconstruction-era amendments (particularly section 5 of the fourteenth amendment) carry over to the spending power? Consider N.. legitimate source of authority. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions." Id.. (2) fewer than five votes likely exist for the substance federalism commitment. it is 50 51 . If they join the risk pool. Dole's Future: A Strategic Analysis. and (4) it is unclear how many Justices are appropriately characterized as form-pIus-pique jurists. the Court has specifically authorized taxing schemes with regulatory effects. Page 295. Under "substance federalism. at 192. 100 (2009): [Although the Supreme] Court's interpretation of the Commerce Clause's breadth certainly has changed since [Bailey]. [T]he textual argument for Congress's authority under the General Welfare Clause is obvious and powerful. For a contrasting view. consider Balkin. Rev. Under "form federalism." the Court might "believ[e] a given regulation exceeds a particular congressional power. See. 165 (2008). The fact that they may not violate any provisions of the Bill of Rights is irrelevant. L. 482 (2010): The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country. Med. United States.. Because of (4). . PENNumbra 93 (2009). 16 S. Does the individual mandate represent a constitutional exercise of Congress's taxing power? With respect to this argument. Sonzinsky v. they do not have to pay the tax. After section 4c of the Note.S.Page 294 The Scope of Congress's Powers The Scope of Congress's Powers Page 295 to Obtain Health Insurance: A Constitutional Analysis 3 (2009) (discussing this question). (3) fewer than five votes likely exist for the form federalism position. even though the Court would not have been concerned about such use of the Spending Clause if a previous Commerce Clause or Section Five decision had not been rendered." Id. and that exertions of congressional power that exceed the proper scope of these clauses are void. The tax gives uninsured people a choice. they effectively raise other people's insurance costs. Siegel suggests that the members of the Roberts Court are potentially split among these positions: (1) Fewer than five votes exist for the view that advocates little or no judicially enforced federalism. understands different constitutional 'hooks' for federal legislation to implicate distinct substantive values. The problem is that this particular regulatory scheme-the health insurance purchase mandate-exceeds Congress's regulatory power. this will help to lower the costs of health insurance premiums nationally. the Department of Justice has also defended the law as a constitutional exercise of Congress's taxing power because the law would impose an income tax penalty on those who do not obtain insurance. Health Care Purchase Mandate: Unconstitutional and Likely to Be Struck Down by the Courts.. Rev. on that account. Econ. but would have no objection if Congress sought to accomplish the same goal through a different. and Congress taxes them to recoup some of the costs.