Last updated on: 11/12/2012 | Author:

Is Obamacare constitutional?

General Reference (not clearly pro or con)

[Editor’s Note: On Thursday June 28, 2012 the US Supreme Court upheld the constitutionality of the Patient Protection and Affordable Care Act in a 5-4 ruling. The majority opinion was written by Chief Justice John Roberts and joined by Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas dissented.

Our chart Obamacare in the Supreme Court, 5-4 Decision on June 28, 2012 provides a summary of the case, a history of how the case made it to the Supreme Court, transcripts from the oral arguments, and a breakdown of the main issues that the Supreme Court ruled on.

Our chart Constitutional Challenges to Federal Health Care Laws: Patient Protection and Affordable Care Act (PPACA) Under Fire lists lawsuits that challenged the constitutionality of the PPACA including the requirement that individuals must purchase health insurance. Other constitutional challenges to the PPACA focused on the fine for not purchasing insurance, the federal authority to force states to implement health policy, financial disclosure rules for doctors, and various changes made to the Medicare and Medicaid systems.]

PRO (yes)


In the three cases against the Patient Protection and Affordable Care Act (decided June 28, 2012), the US Supreme Court, in a 5-4 majority decision written by Chief Justice John G. Roberts, held that:

“The Government advances two theories for the proposition that Congress had constitutional authority to enact the individual mandate. First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause… Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress’s power to tax…

The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now…

The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce…

Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to ‘lay and collect Taxes.’ Art. I, §8, cl. 1…

The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness…”

June 28, 2012 - Supreme Court Decision: PPACA


Stephanie Cutter, JD, Deputy Senior Advisor to President Obama, stated the following in her Aug. 12, 2011 article “The Latest Health Care Court Case,” available at

“There has been no shortage of court cases regarding the constitutionality of the Affordable Care Act. Before today, four courts, including the Sixth Circuit Court of Appeals, examined the health reform law and found it constitutional.

Today, a different court ruled against the Affordable Care Act’s individual responsibility provision. We strongly disagree with this decision and we are confident it will not stand.

The individual responsibility provision – the main part of the law at issue in these cases – is constitutional. Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect. Individuals who choose to go without health insurance are making an economic decision that affects all of us – when people without insurance obtain health care they cannot pay for, those with insurance and taxpayers are often left to pick up the tab…

That’s why the Affordable Care Act requires everyone who can afford it to take responsibility for their own health care and carry some form of health insurance…

Today’s ruling is one of many decisions on the Affordable Care Act that we will see in the weeks and months ahead. In the end, we are confident the Act will ultimately be upheld as constitutional.”

Aug. 12, 2011


Richard Cordray, JD, Attorney General of Ohio, wrote in his Apr. 4, 2010 Plain Dealer opinion piece “Health Care Law and Ohio: It Is Constitutionally Sound and No Challenge Would Prevail: Richard Cordray”:

“…[S]ome state and federal officeholders are urging that my top priority instead should be to bring a lawsuit challenging the constitutionality of the new health insurance reform law… I have carefully considered the basis of the lawsuit they have urged. My considered judgment is that it lacks merit…

Two constitutional issues are raised in the lawsuits. The first is whether Congress exceeded its proper bounds by enacting a mandate for most Americans to purchase health care coverage. For seventy years, the Supreme Court has read the Commerce Clause broadly to authorize Congress to address our most pressing national economic concerns. In Gonzales v. Raich, a 2005 decision, the court held that the Commerce Clause authorizes Congress to prohibit the cultivation of marijuana for personal medical use because it has economic effects, even though no economic transaction was involved at all.

The claim is also made that Congress has never required anyone to purchase a product or service. That is factually wrong. The Second Militia Act of 1792, signed by President George Washington, explicitly required many Americans to make an economic purchase: of a gun, ammunition, gunpowder, and a knapsack to be properly prepared for military service… In short, the Commerce Clause claim has no legal merit unless activist judges, of the type these officeholders normally deplore, were to tear up decades of settled jurisprudence.

The other constitutional argument is that the Tenth Amendment does not permit Congress to require states to establish insurance exchanges. But the new law does not require that. Instead, it gives states a choice, and if they decline, the federal government will take on that responsibility. Just as Medicaid is a voluntary federal-state program whose constitutionality has been upheld by the courts, this new law is entirely consistent with the Tenth Amendment.”

[Editor’s Note: Although not directly about health care, the Militia Act of 1792  did institute a national mandate.  It required every “free able-bodied white male citizen… who is and shall be of the age of eighteen years, and under the age of forty-five years… to provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch and powder horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder…”] Apr. 4, 2010


Jack M. Balkin, JD, PhD, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, wrote in his Mar. 28, 2010 New York Times article “Is the Health Care Law Unconstitutional?”:

“The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance…

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional…

Many important and popular government programs are based [on] Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).

Opponents of the individual mandate insist that they are only defending individual freedom, but they are actually taking a far more radical position. They are really claiming that it is unconstitutional to make Americans pay taxes.”

Mar. 28, 2010


Simon Lazarus, JD, Public Policy Counsel for the National Senior Citizens Law Center, wrote in the Dec. 2009 American Constitution Society for Law and Policy Issue Brief “Mandatory Health Insurance: Is It Constitutional?”:

“…[T]he mandate is lawful and clearly so –pursuant either to Congress’ authority to ‘regulate commerce among the several states,’ or to its authority to ‘lay and collect taxes to provide for the General Welfare.’ With respect to Congress’ interstate commerce authority, the goals that drive this legislation – including achieving universal coverage, eliminating adverse selection, eliminating pre-existing conditions as a prerequisite for coverage, facilitating broad-scale pooling of individuals not covered by group health plans, and radically reducing costly emergency room visits by uninsured individuals – are eminently lawful objects for the exercise of that power. In the context of current health insurance market circumstances and the framework of the legislation, the use of an individual mandate, structured as it is to ensure affordability for all who are subject to it, is likewise an eminently rational and well-supported (‘necessary and proper’ in the words of Article I, §8) means for achieving these goals. The same goals and choice of means fit the mandate snugly within precedents broadly defining Congres’ authority to tax and spend.

Opponents’ arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress’ interstate commerce authority… [T]hey have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions.”

[Editors Note: In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.] Dec. 2009


David Orentlicher, MD, JD, Professor of Law and Co-Director of the Hall Center for Law and Health at the Indiana University School of Law-Indianapolis, wrote in his Dec. 14, 2009 Huffington Post article “An Individual Mandate to Purchase Health Care Insurance Is Constitutional”:

“…[A] mandate to purchase insurance can be justified by the Constitution’s grant to Congress of a taxing power and a commerce clause power. The taxing power is a well-established basis for enacting an individual mandate. Indeed, this country has had a tax-based mandate to purchase health care insurance for nearly 45 years. The Medicare program imposes a payroll tax on Americans as a way to fund coverage of their hospital costs once they reach age 65. People cannot opt out of Medicare… Similarly, Congress can use a payroll tax to implement a mandate for individuals to purchase health insurance before they reach age 65…

Under the commerce clause, Congress has the power to regulate interstate commerce, and the health care insurance industry clearly falls within the Supreme Court’s understanding of interstate commerce… [A]n individual mandate to purchase health care insurance falls comfortably within the demands of our Constitution.”

[Editors Note: In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.] Dec. 14, 2009


The US Department of Justice (DOJ), wrote in its May 11, 2010 brief “Defendents’ Response to Plaintiffs’ Motion for Preliminary Injunction and Brief in Support” in Thomas More Law Center, et al. v. Barack Obama, et al.:

“As to the Commerce Clause, Congress specifically found that, in the interstate markets for health care and health insurance, the minimum coverage provision ‘regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.’ PPACA [Patient Protection and Affordable Care Act] §§ 1501(a)(2)(A), 10106(a). The predicate of this finding, and a distinguishing feature of the health care market, is that virtually everyone will need medical services at some point. Congress had a rational basis to conclude that economic decisions not to purchase insurance to pay for these services, taken in the aggregate, substantially affect interstate commerce… Congress also rationally determined that the minimum coverage provision is essential to its comprehensive regulatory scheme for the interstate markets in health care and health insurance. These findings are more than sufficient to sustain the Act as an exercise of Congress’s Commerce Clause power. See Gonzales v. Raich, 545 U.S. 1, 16-17 (2005).

Apart from its power under the Commerce Clause, Congress also has authority under its power to tax and spend to ‘provide for the… general Welfare,’ U.S. Const. art. I, § 8, cl. 1, to require individuals to pay a penalty… if they do not obtain health insurance. The determination of what furthers the general welfare is for Congress to make, ‘unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.’ Helvering v. Davis, 301 U.S. 619, 640 (1937). The minimum coverage provision… falls squarely within Congress’s ‘extensive’ General Welfare authority. License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867).”

May 11, 2010

CON (no)


Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, US Supreme Court Justices, wrote in their June 28, 2012 jointly written dissenting opinion in the three cases against the Patient Protection and Affordable Care Act:

“Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go beyond those powers. We conclude that they do…

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States…

The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative…

All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the ‘market’ for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power…

The dissent claims that we ‘fai[l] to explain why the individual mandate threatens our constitutional order.’… But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers.”

June 28, 2012


Dan Danner, MBA, President and CEO of the National Federation of Independent Business (NFIB), stated the following in his Aug. 23, 2011 article “Send Obamacare to the Supreme Court Right Now,” available at

“Recently the 11th Circuit Court of Appeals dealt a debilitating blow to this unprecedented and cumbersome new law [the Patient Protection and Affordable Care Act] by striking down a most onerous and controversial provision: the individual mandate… the mandate requiring every American to purchase health insurance or pay a penalty is a profound overreach of government power. Offsetting the cost of providing health care to some by violating the freedom of all isn’t a greater good, it’s unconstitutional…

Essentially, the decision affirms that every American—not the government—has the right to determine at what time he or she will enter the health insurance marketplace. Until that time the government has absolutely no legal
authority to regulate that activity.

NFIB hoped that the Court would find the individual mandate so integral to PPACA’s construction that the law is not viable without it, and therefore find the entire law unconstitutional…”

Aug. 23, 2011


The Attorneys General of Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Arizona, Nevada, Georgia, and Alaska, along with the National Federation of Independent Business, Mary Brown, and Kaj Ahlburg, in a May 15, 2010 amended complaint against the US Department of Health and Human Services (HHS), et al., in the US District Court Northern District of Florida, wrote:

“The [Patient Protection and Affordable Care] Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty… By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.

In addition, the tax penalty required under the Act, which must be paid by uninsured citizens and residents, constitutes an unlawful capitation or direct tax, in violation of Article I, sections 2 and 9 of the Constitution of the United States.

The Act also represents an unprecedented encroachment on the sovereignty of the states. For example, it requires that Florida vastly broaden its Medicaid eligibility standards to accommodate upwards of 50 percent more enrollees, many of whom must enroll or face a tax penalty under the Act, and imposes onerous new operating rules that Florida must follow. The Act requires Florida to spend billions of additional dollars…

Further, the Act converts what had been a voluntary federal-state partnership into a compulsory top-down federal program in which the discretion of the Plaintiffs and their sister states is removed, in derogation of the core constitutional principle of federalism upon which this Nation was founded. In so doing, the Act exceeds the powers of the United States and violates the Tenth Amendment to the Constitution.” 

May 15, 2010 - State of Florida, et al. v. US Department of Health and Human Services, et al.


In Commonwealth of Virginia v. Sebelius (decided Dec. 13, 2010), the US District Court in the Eastern District of Virginia, in a decision written by Judge Henry Hudson, held that:

“Earlier in this opinion, the Court concluded that Congress lacked the power under the Commerce Clause, or associated Necessary and Proper Clause, to compel an individual to involuntarily engage in a private commercial transaction, as contemplated by the Minimum Essential Coverage Provision…

The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers.  At its core, this dispute is not simply about regulating the business of insurance – or crafting a scheme of universal health insurance coverage – it’s about an individual’s right to choose to participate…

Article I, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers…

On careful review, this Court must conclude that Section 1501 of the Patient Protection and Affordable Care Act – specifically the Minimum Essential Coverage Provision – exceeds the constitutional boundaries of congressional power.”

Dec. 13, 2010 - Commonwealth of Virginia v. Sebelius


Ken Cuccinelli, JD, Attorney General for the State of Virginia, stated the following in a Dec. 16, 2010 editorial “Time for the Supreme Court to Weigh in on the Health-Care Law,” published in the Washington Post:

“The health-care law sacrifices the liberty of Americans and abandons the Constitution that protects that liberty. The power Congress claims it has to create the mandate and penalty has no principled limits: If the federal government can order a citizen to purchase a private product such as health insurance in the name of public policy, it can order us to buy anything.

The fact that the mandate and penalty were declared unconstitutional [in Commonwealth of Virginia v. Sebelius ] should surprise no one. Any other result would mean that the federal government had ceased being a government of limited, enumerated powers, and it could exercise control over any aspect of American life.”

Dec. 16, 2010


Randy E. Barnett, JD, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, wrote in his Mar. 21, 2010 Washington Post article “Is Health-Care Reform Constitutional?”:

“Can Congress really require that every person purchase health insurance from a private company or face a penalty? The answer lies in the commerce clause of the Constitution, which grants Congress the power ‘to regulate commerce… among the several states.’

…[T]he individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying ‘cash for clunkers’ is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.”

Mar. 21, 2010


Orrin G. Hatch, JD, US Senator (R-UT), J. Kenneth Blackwell, ME, Senior Fellow for Family Empowerment at the Family Research Council, and Kenneth Klukowski, JD, Fellow and Senior Legal Analyst with the American Civil Rights Union, wrote in their Jan. 2, 2010 Wall Street Journal article “Why the Health-Care Bills Are Unconstitutional”:

“…[K]ey provisions of this dangerous [health care reform] legislation are unconstitutional…

First, the Constitution does not give Congress the power to require that Americans purchase health insurance… Congress’s powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress’s power to regulate interstate commerce.

Some have argued that Congress may pass any legislation that it believes will serve the ‘general welfare.’ Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending…

America’s founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality.”

[Editors Note: In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.] Jan. 2, 2010


The Association of American Physicians and Surgeons (AAPS), wrote in its Mar. 29, 2010 post “Talking Points, AAPS Sues in D.C. to Overturn the Health Care Bill” on its website

“The Association of American Physicians & Surgeons (‘AAPS’) sued on March 26th to invalidate the massive health care bill, which passed the House by only 4 votes on a party-line vote (with 34 Democrats voting against it). Forcing patients to buy insurance that may not even cover the care they need is wrong for patients, physicians, and our nation, and is unconstitutional…

  • Forcing people to pay money to insurance companies is unconstitutional under the Fifth and Tenth Amendments, the Commerce Clause, and the authority to tax 
  • Forcing physicians to buy low-deductible, non-HSA-based insurance for their employees is likewise unconstitutional 
  • Forcing patients to participate in Medicare Part A, at the risk of losing their Social Security benefits, is unconstitutional and harms physicians who operate surgery centers outside of Medicare”
Mar. 29, 2010