Matt Sissel is a young entrepreneur who is pursuing the American dream. After returning from military service in Iraq and paying his way through art school, he opened a studio in Iowa City, where he sells his fine art and offers art lessons. Until recently, Matt’s entire focus had been on furthering his education and art business. So he made the considered judgment to forgo some luxuries—such as health insurance.
In his twenties, Matt is healthy and has no preexisting medical conditions. He is self-insured—paying out of pocket any medical expenses that might arise—and wants to continue to self-insure because he believes the cost of health insurance premiums is excessive and that his money is better devoted to his business.
But the federal government couldn’t care less about Matt’s priorities and choices.
Beginning in 2014, it will force Matt, along with almost every other American, to buy a comprehensive, government-approved health-insurance plan from a private insurance company, on pain of stiff civil penalties. This “Individual Mandate” is at the heart of the Patient Protection and Affordable Care Act—also known as “ObamaCare”—which Congress enacted and the president signed into law in 2010.
As a consequence of the Individual Mandate, Matt must act now to make financial plans: either purchase health insurance or pay a hefty annual penalty. Given the financial burden it will impose, he can no longer afford to hone his craft by furthering his education in art. Matt must focus exclusively on the creation and sale of his artwork in order to brace himself for the impending obligations the Individual Mandate imposes.
Outraged that he is being forced to divert his hard-earned resources away from his education and career in order to buy a service he neither needs nor wants, Matt has decided to sue the federal government, asking the federal district court in Washington, D.C., to enjoin enforcement of the Individual Mandate on the grounds that it violates the United States Constitution. Other legal challenges to the Individual Mandate are pending in courts across the country, such as the well-known lawsuits brought by various state governments and officials whose purpose is to protect their sovereignty against federal encroachment. But few challenges take up the cause as championed by Matt, who is driven by the explicit desire to have the government recognize his right to life, liberty, and the pursuit of happiness, exercised in accordance with his own values and goals.1
Let us consider the prospects for Matt’s constitutional challenge to the Individual Mandate.
ObamaCare’s Individual Mandate
In brief, here is how the Individual Mandate will work: Beginning in 2014, with few exceptions, all individuals with legal residence in the United States will be forced to purchase a health-insurance plan with “minimum essential coverage,” as defined by the government. Exempt individuals include Native Americans, religious objectors, Americans living abroad, and the poor (whose health care will be subsidized). And what the law defines as “minimum essential coverage” is far more than is necessary for young and healthy individuals such as Matt. Thus, a catastrophic health-insurance plan covering only expenses related to medical emergencies—which would make sense for many Americans—would not satisfy the mandate’s requirements. Moreover, individuals subject to the Individual Mandate cannot satisfy the “minimum essential coverage” requirement by self-insuring: Under the act, they are prohibited from paying for their medical expenses out of pocket.2
Thus, if Matt fails to buy “minimum essential coverage” by January 1, 2014, the government will assess a financial penalty against him for every month he remains without such coverage. The penalty for failing to purchase approved health insurance is the greater of 2.5 percent of the taxpayer’s annual income, or $695 for each uninsured family member per year, up to a maximum of $2,085 per family per year—not an insignificant sum.3 Does the federal government—specifically, Congress—really have the legal power to force Matt and other Americans to buy a product or service, such as health insurance, from a private company? . . .
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Acknowledgment: I would like to thank my PLF colleagues and cocounsel on the Sissel case, Timothy Sandefur and Luke Wake, for their insightful comments on this article.
1 Matt Sissel, “Why I’m Suing to Get Back My Freedom,” Christian Science Monitor, September 13, 2010, available at http://www.csmonitor.com/Commentary/Opinion/2010/0913/Health-care-reform-Why-I-m-suing-to-get-back-my-freedom.
2 Patient Protection and Affordable Care Act, Pub.L. 111-148, 124 Stat. 119, to be codified as amended at scattered sections of the Internal Revenue Code and in 42 U.S.C.
3 26 U.S.C. § 5000A(c).
4 For a discussion of the original meaning of the Commerce Clause power, see Randy E. Barnett, Restoring The Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004), ch. 11.
5 Richard A. Epstein, How Progressives Rewrote the Constitution (Washington, D.C.: Cato Institute, 2006).
6 United States v. Morrison, 529 U.S. 598, 608 (2000).
7 United States v. Lopez, 514 U.S. 549, 609 (1995).
8 317 U.S. 111 (1942).
9 545 U.S. 1 (2005).
10 529 U.S. 598 (2000).
11 514 U.S. 549 (1995).
12 Congressional Research Service, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, July 24, 2009, at 3.
13 U.S. Const. art. 1, sec. 8, cl. 18.
14 U.S. v. Comstock, 560 U.S. ___ (2010) (Thomas, J., dissenting).
15 McCulloch v. Maryland, 17 U. S. 316 (1819) (“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”).
16 United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996).
17 Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 779-80 (1994).
18 Liberty University v. Geithner, 753 F. Supp. 2d 611 (W.D. Va. 2010); Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010).
19 Commonwealth of Va. ex rel. Cuccinelli, 728 F. Supp. 2d 768 (E.D. Va. 2010); United States Citizens Ass’n v. Sebelius, 754 F. Supp. 2d 903 (N.D. Ohio 2010); Florida v. U.S. Dep’t of Health & Human Servs., 716 F. Supp. 2d 1120 (N.D. Fla. 2010).