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Requiring Individuals to Obtain Health
Insurance: A Constitutional Analysis
Jennifer Staman
Legislative Attorney
Cynthia Brougher
Legislative Attorney
Edward C. Liu
Legislative Attorney
Erika K. Lunder
Legislative Attorney
Kenneth R. Thomas
Legislative Attorney
February 1, 2011
Congressional Research Service
7-5700
www.crs.gov
R40725
CRS Report for Congress
P
repared for Members and Committees of Congress
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Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis
Summary
As part of the Patient Protection and Affordable Care Act (PPACA), P.L. 111-148, as amended,
Congress enacted an “minimum essential coverage requirement,” a provision compelling certain
individuals to have a minimum level of health insurance (i.e., an “individual mandate”).
Individuals who fail to do so are subject to a monetary penalty, administered through the tax code.
Although the federal government provides health coverage for many individuals through federal
programs such as Medicare, it had never before required individuals to purchase health insurance.
This report analyzes certain constitutional issues raised by compelling individuals to purchase
health insurance. It addresses the authority of Congress to pass a law of this nature under its
taxing power or its power to regulate interstate commerce. With regard to the taxing power, the
requirement to purchase health insurance might be construed as a tax and upheld so long as it was
found to comply with the constitutional restrictions imposed on direct and indirect taxes. On the
other hand, opponents of the minimum essential coverage requirement may argue that since it is
imposed conditionally and may be avoided by compliance with regulations set out in the statute,
that the requirement may be more accurately described as a penalty. If so, the taxing power alone
might not provide Congress the constitutional authority to support this provision.
In evaluating under the minimum essential coverage requirement under the Commerce Clause, a
court may rely on Supreme Court precedent and look to several factors to determine whether the
minimum essential coverage requirement passes constitutional muster. Among other things, a
court may evaluate whether the requirement is a regulation of economic activity. One could argue
that the requirement to purchase health insurance is economic in nature because it regulates how
an individual participates in the health care market, through insurance or otherwise. On the other
hand, it may be argued that the minimum essential coverage requirement goes beyond the bounds
of the clause, because while regulation of the health insurance industry or the health care system
is economic activity, regulating a choice to purchase health insurance is not.
It has been questioned whether the requirement to have health insurance might violate certain
protections found under the U.S. Constitution. This report discusses how a court might evaluate a
challenge to the minimum essential coverage requirement on Fifth Amendment due process,
takings clause, or equal protection grounds, as well as under the Tenth Amendment. This report
also addresses whether the exceptions to the minimum essential coverage requirement to purchase
health insurance satisfy First Amendment freedom of religion protections.
Several lawsuits have been filed that challenge the minimum essential coverage requirement on
constitutional grounds. For example, in Florida v. HHS, attorneys general and governors in 26
states as well as others have brought an action against the Secretaries of Health and Human
Services, Treasury, and Labor, seeking declaratory and injunctive relief from certain provisions
of PPACA. On January 31, 2011, the district court held that the minimum essential coverage
requirement is unconstitutional, and struck down the law in its entirety. Similarly, in Virginia ex
rel. Cuccinelli v. Sebelius, the Virginia attorney general filed a separate lawsuit challenging the
federal requirement to purchase health insurance, and the district court found that the minimum
essential coverage requirement does not pass constitutional muster. In contrast, two federal
district courts have upheld the minimum essential coverage requirement as a constitutional
exercise of the Commerce Clause. Many expect that one or more of these cases will reach the
Supreme Court.
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Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis
Contents
Background ................................................................................................................................ 1
Constitutional Authority to Require an Individual to Have Health Insurance................................ 2
Taxing Power ........................................................................................................................ 3
Limits on the Taxing Power............................................................................................. 5
Power to Regulate Commerce ............................................................................................... 8
Health Insurance Coverage Requirements and the Fifth and Tenth Amendments........................ 14
Substantive Due Process ..................................................................................................... 15
Equal Protection.................................................................................................................. 17
Takings Clause.................................................................................................................... 19
Tenth Amendment ............................................................................................................... 20
Religious Exemptions to Minimum Essential Coverage Requirements....................................... 20
Constitutional and Statutory Rules Regarding Religious Exercise ........................................ 21
Legal Analysis of Religious Exemptions for the Minimum Essential Coverage
Requirement .................................................................................................................... 22
Is a Religious Exemption Constitutionally or Statutorily Required for a Minimum
Essential Coverage Requirement? .............................................................................. 22
Does the Constitution Allow a Religious Exemption for the Minimum Essential
Coverage Requirement? ............................................................................................. 24
Legal Challenges to the Minimum Essential Coverage Requirement.......................................... 25
Florida v. HHS.............................................................................................................. 26
Virginia ex rel. Cuccinelli v. Sebelius............................................................................. 27
Thomas More Law Center v. Obama and Liberty University v. Geithner ........................ 28
Contacts
Author Contact Information ...................................................................................................... 29
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Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis
lthough the federal government provides health coverage for many individuals through
federal programs such as Medicare, it has never required individuals to purchase health
A insurance until the enactment of the Patient Protection and Affordable Care Act1
(PPACA) in March of 2010.2 While a requirement to transfer money to a private party may arise
in other contexts (e.g., automobile insurance), it has been noted that these provisions are based on
exercising a privilege, like driving a car.3 Thus, due at least in part to the novelty of this
requirement, questions over its constitutionality have been raised, and several lawsuits have
challenged the minimum essential coverage requirement on constitutional grounds.
This report first analyzes the authority of Congress to enact the minimum essential coverage
requirement contained in PPACA, as well as how a court might analyze this provision if
challenged based on various provisions of the Fifth and Tenth Amendments. This report discusses
whether there must be exceptions to a requirement to purchase health insurance based on First
Amendment freedom of religion, and finally, discusses some of the legal challenges to this federal
requirement.
Background
Under Section 1501 of PPACA, beginning in tax year 2014, some taxpayers will be assessed a
monetary penalty for any months during which they or their dependents lack “minimum
essential” health coverage.4 “Minimum essential coverage” includes coverage under a
government-sponsored health care program (e.g., Medicaid, Part A of Medicare); an “eligible”
employer-sponsored plan; coverage under a plan offered in the individual market; a grandfathered
health plan; and other health coverage as recognized by the Secretary of Health and Human
Services.
The amount of the assessment for failing to meet the minimum essential coverage requirement,
which can be prorated for partial compliance during the year, is determined by taking the greater
of a flat dollar amount and a calculation based on a percentage of the taxpayer’s household
income. The annual flat dollar amount is assessed per individual or dependent without coverage
and will be phased in over three years. The amount is set at $95 for 2014; $325 for 2015; and
$695 in 2016 and thereafter.5 This amount will also be adjusted for inflation beyond 2016.
1 Patient Protection and Affordable Care Act, P.L. 111-148, § 1501(b) (2010), as amended by the Health Care and
Education Reconciliation Act of 2010 P.L. 111-152 § 1002 (2010). The requirement to purchase health insurance will
be referred to, as in section 1501(b), as the minimum essential coverage requirement.
2 See Congressional Budget Office Memorandum, The Budgetary Treatment of an Individual Mandate to Buy Health
Insurance (Aug. 1994) (“A mandate requiring all individuals to purchase health insurance would be an unprecedented
form of federal action.”).
3 See Mark A. Hall, The Constitutionality of Mandates to Purchase Health Insurance, Legal Solutions in Health Care
Reform, available at http://www.rwjf.org/files/research/38108.3693.constitutionality.mandates.pdf. See also In Ex Parte
Poresky, 290 U.S. 30 (1933) (Court agreed that a district court’s dismissal of a complaint alleging that Massachusetts’
compulsory automobile liability insurance law violated the 14th Amendment was proper “in view of the decisions of
this Court bearing upon the constitutional authority of the State, acting in the interest of public safety, to enact the
statute assailed.”). It should be noted that while laws related to military service (e.g., the draft) could be considered an
example of a federal mandate pertaining to individuals, the authority for these laws likely relies on Congress’s authority
to raise and support armies. See generally Rostker v. Goldberg, 453 U.S. 57, 65 (1981); Selective Draft Law Cases, 245
U.S. 366 (1918).
4 P.L. 111-148, § 1501(b), as amended by P.L. 111-152, § 1002.
5 The tax would be one half the applicable dollar amount if the taxpayer was younger than 18 years old.
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Although this is a fixed per-person amount, a taxpayer’s liability will not exceed three times this
amount per year, regardless of the number of individuals who actually lack adequate coverage
during the year. For example, a married couple filing jointly with two dependent children and no
health insurance will have the same flat dollar assessment as a similarly situated married couple
with three dependent children.
This flat dollar amount will be compared to a percentage of the extent to which the taxpayer’s
household income exceeds the income tax filing threshold.6 Like the flat dollar amount, the
applicable percentage to be used is phased in over three years, set at 1% for 2014, 2% for 2015,
and 2.5% thereafter. The amount assessed on a taxpayer who lacks minimum essential coverage
will be equal to the greater of the flat dollar amount or the calculated percentage of household
income. However, this amount shall not exceed the national average of the annual premiums of a
bronze level health insurance plan offered through an exchange created under PPACA.
Exemptions would apply to individuals with qualified religious exemptions, members of health
care sharing ministries, unauthorized aliens, incarcerated individuals, qualified U.S. citizens and
residents living abroad, and bona fide residents of the U.S. possessions. Additionally, no amounts
would be assessed on individuals who could not afford coverage;7 taxpayers with income less
than the filing threshold; members of Indian tribes; and individuals granted hardship exceptions.
Finally, no amounts would be assessed for periods without coverage that last less than three
months. This three-month exception could apply to only one continuous period without coverage
during a calendar year.
Constitutional Authority to Require an Individual
to Have Health Insurance
In analyzing the constitutionality of PPACA’s requirement to obtain health insurance, the first
question is the congressional authority for this requirement based on Congress’s enumerated
powers. While there is no specific enumerated power to regulate health care or establish a
minimum essential coverage requirement, one can look to Congress’s other broad enumerated
powers which have been used to justify social programs in the past. In the instant case,
Congress’s taxing power could be applicable. In addition, Congress’s power to regulate interstate
commerce may also be pertinent, especially given that Section 1501 of PPACA , as amended,
provides numerous findings about the correlation or the minimum essential coverage requirement
to interstate commerce.
6 The filing threshold for individuals is defined in I.R.C. § 6012(a)(1) and is roughly equal to the taxpayer’s personal
exemption (or exemptions in the case of a joint filer) and standard deduction.
7 In general, an individual will be deemed not to afford coverage if the required contribution for employer-sponsored
coverage or a bronze-level plan on an Exchange exceeds 8% of the individual’s household income for the taxable year.
See 26 U.S.C. § 5000A(e)(1)(A), as created by PPACA. For information on Exchanges as provided for in PPACA, see
CRS Report R40942, Private Health Insurance Provisions in the Patient Protection and Affordable Care Act (PPACA),
by Hinda Chaikind, Bernadette Fernandez, and Mark Newsom.
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Taxing Power
Article I, Section 8 of the Constitution states that “Congress shall have Power 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.... ” The power to tax and spend for the general welfare is
one of the broadest powers in the Constitution and affords the basis of government health
programs in the Social Security Act, including Medicare, Medicaid, and the State Children’s
Health Insurance Program.
Because Congress’s power to tax is extremely broad,8 a court might look to it as a legitimate
source of power for Congress to impose the minimum essential coverage requirement. If so, the
provision might be upheld as constitutional so long as it was found to comply with the
constitutional restrictions imposed on direct and indirect taxes discussed below. In such case, a
court might favorably compare the requirement to other examples of where Congress has used its
taxing authority to create financial incentives for individuals to purchase health insurance.9
Similarly, if Congress were to require individuals to purchase health insurance, and then
encourage compliance with this requirement by conditioning receipt of a tax benefit (e.g., a tax
credit) on the purchase of health insurance, this incentive also could be seen as a legitimate
exercise of Congress’s taxing authority.
On the other hand, opponents of the minimum essential coverage requirement may note that the
enacted requirement differs in that it creates a financial disincentive for failing to obtain health
insurance. As the tax is imposed conditionally and may be avoided by compliance with
regulations set out in the statute, some might argue that it may also be accurately described as a
penalty and, therefore, the taxing power alone might not provide Congress the constitutional
authority to impose the requirement.10 A court analyzing this argument might look to cases where
the Supreme Court has examined whether Congress has the authority, independent of its taxing
authority, to regulate the underlying subject matter. If such regulation is authorized under a
provision of the Constitution other than the taxing power, the exaction may be sustained as an
appropriate enforcement mechanism.11 But, in the absence of such independent authority, a tax
triggered by the failure to comply with federal standards has been held to be invalid.12
8 See, e.g., United States v. Doremus, 249 U.S. 86, 93 (1919) (“If the legislation enacted has some reasonable relation
to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed
motives which induced it.”).
9 See I.R.C. § 106 (excluding from gross income compensation received by employees in the form of health care
benefits).
10 But see Brian D. Galle, Conditional Taxation and the Constitutionality of Health Care Reform (April 3, 2010). Yale
Law Journal Online, Forthcoming; FSU College of Law, Public Law Research Paper; GWU Law School Public Law
Research Paper. Available at SSRN: http://ssrn.com/abstract=1584044 (arguing “‘conditional’ taxes—taxes used to
achieve some regulatory end—are not limited only to those purposes covered by Congress’s other enumerated powers.
Instead, Congress may condition exemptions from a tax on any criteria it chooses—other than those expressly
prohibited by the Constitution, such as restrictions on free speech—so long as it is willing to pay the political price for
carving out that exception.”).
11 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 383 (1940) (a tax on coal producers who did not meet certain
federal requirements was upheld because the imposition of federal requirements was a valid exercise of Congress’
power to regulate interstate commerce).
12 Child Labor Tax Case, 259 U.S. 20 (1922) (striking tax on the employment of children because regulation of child
labor was not within Congress’ authority under the Commerce Clause at the time; Congress’ authority under the
Commerce Clause has since been recognized by the Supreme Court to be much broader).
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A court that found it necessary to determine whether the character of the minimum essential
coverage payment is that of a tax or penalty would likely examine congressional intent. The Court
has noted that
the difference between a tax and a penalty is sometimes difficult to define and yet the
consequences of the distinction in the required method of their collection often are
important.... Taxes are occasionally imposed in the discretion of the legislature on proper
subjects with the primary motive of obtaining revenue from them and with the incidental
motive of discouraging them by making their continuance onerous. They do not lose their
character as taxes because of the incidental motive. But there comes a time in the extension
of the penalizing features of the so-called tax when it loses its character as such and becomes
a mere penalty with the characteristics of regulation and punishment.13
Here, enforcement of this provision would likely result in revenue for the federal government,
and a court might find this to be a sufficient purpose to be a valid exercise of the taxing power.
But, it may be difficult for a court to ignore the larger context of health insurance reform in which
the provision has arisen. To the extent that this context indicates that a primary motive of the
provision is to encourage compliance with a federal requirement that individuals maintain some
form of health insurance, a court may characterize it as a penalty rather than a tax.
For example, a court might look to any legislative findings accompanying the minimum essential
coverage requirement. Notably, Congress found that
[t]he [minimum essential coverage] requirement 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.14
The language Congress itself uses to refer to the provision may also influence its characterization.
On one hand, simply because Congress has labeled a provision as a tax, a court is not bound by
that label.15 However, neither would a court be prohibited from using Congress’s description of
the provision as a penalty as evidence of Congress’s intent.
Other factors can be gleaned from the Court’s jurisprudence distinguishing taxes and penalties.
Factors which suggest that a provision might actually be a penalty include (1) the absence of a
correlation between the amount of tax and the magnitude by which an individual’s conduct
deviates from the conduct which is exempt from taxation; (2) a limitation that the tax only fall on
individuals that knowingly deviate from the exempt conduct; and (3) the possibility of
enforcement by government entities not traditionally charged with the enforcement of taxes.16
Application of these three factors to the instant provision would appear to support its
characterization as a tax. First, the amount of the penalty is roughly proportional to the length of
time during the year that the taxpayer and his or her dependents lacked coverage. Second,
knowledge is not a necessary element to assess the penalty. Third, it appears that the provision
13 Id. at 38 (emphasis added).
14 See P.L. 111-148, § 1501(a)(2)(A).
15 Child Labor Cases, 259 U.S. at 38 (“To give such magic to the word “tax” would be to break down all constitutional
limitation of the powers of Congress and completely wipe out the sovereignty of the States.”).
16 Id. at 36-37 (“In the light of these features of the act, a court must be blind not to see that the so-called tax is imposed
to stop the employment of children within the age limits prescribed. Its prohibitory and regulatory effect and purpose
are palpable. All others can see and understand this. How can we properly shut our minds to it?”).
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will be enforced by the Internal Revenue Service, an entity traditionally charged with the
enforcement of taxes. However, this list comprises only those factors the Court found present in
the case before it, and may not represent an exhaustive list of what a court might consider as
indicia of taxes.
If a court were to classify the provision as a penalty, this would not be determinative of its
constitutional validity, but would merely establish that Congress’s authority to enact such a
provision must be found in something other than its power to levy taxes. In other words, the
constitutionality of the minimum essential coverage requirement, if determined to be a penalty,
would depend upon whether Congress has the authority under a power other than the taxing
power to impose a financial burden on individuals that lack health insurance. As discussed below,
one potential source of such authority may be the Commerce Clause.
Limits on the Taxing Power
Even where Congress has the general authority to levy a tax, the Constitution may impose
additional requirements on the form of such taxes. For constitutional purposes,17 taxes are
understood to be either
• direct taxes, subject to apportionment among the states based on population,18 or
• indirect taxes (i.e., duties, imposts, and excises), subject to the Uniformity
Clause.19
Additionally, under the Sixteenth Amendment, taxes on income, from whatever source, are not
required to be apportioned,20 even if such taxes are direct. The amendment itself does not classify
income taxes as direct or indirect.
Here, it appears the minimum essential coverage requirement would raise constitutional concerns
under these provisions only if it was found to be a direct tax that was not a tax on income. This is
because it would then be subject to the requirement of apportionment, and there is no indication it
will be apportioned among the states based on population. If, however, the requirement was found
to be a tax on income, it would fall under the protection of the Sixteenth Amendment and its lack
of apportionment would raise no constitutional concerns. Similarly, it appears no constitutional
issues would arise if the requirement was found to be an indirect tax since it would appear to
satisfy the requirement of uniformity since it is geographically neutral on its face.21
Some have argued that the minimum essential coverage requirement is in fact a direct tax, and,
consequently, must be apportioned. The exact scope of the term “direct taxes” is undetermined,
but the Court has construed it to be relatively narrow. The Constitution does not define the term
other than specifying that it includes capitations (a capitation, or head tax, is a fixed tax imposed
17 See Thomas v. United States, 192 U.S. 363, 370 (1904) (“And these two classes, [direct taxes], and ‘duties, imposts
and excises,” apparently embrace all forms of taxation contemplated by the Constitution.”).
18 U.S. CONST. Art. 1, § 9, cl. 4 (“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or
Enumeration….”); Art. 1, § 2, cl. 3 (“direct Taxes shall be apportioned among the several States….”).
19 U.S. CONST. Art. I, § 8, cl. 1 (“[A]ll duties, Imposts and Excises shall be uniform throughout the United States.”).
20 U.S. CONST. Amend. XVI (“The Congress shall have power to lay and collect taxes on incomes, from whatever
source derived, without apportionment among the several States, and without regard to any census or enumeration.”).
21 See United States v. Ptasynski, 461 U.S. 74 (1983) (stating the Uniformity Clause bars geographic discrimination).
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Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis
on each person in a jurisdiction). The Framers’ debates provide little clarity.22 From its earliest
days, the Supreme Court has indicated that direct taxes include capitations and real property taxes
at a minimum.23 The Court has also suggested that other types of taxes might be considered
direct,24 although the Court did not find any such examples25 until the Pollock case in 1895. In
Pollock, the Court struck down the unapportioned Income Tax Act of 189426 after finding parts of
it—the taxes on income from real and personal property—were direct taxes.27 The Pollock
decision was subject to substantial criticism and led to the adoption of the Sixteenth Amendment
in 1913. Pollock has not been expressly overruled,28 although the Court moved away from its
analysis in subsequent cases that upheld a variety of unapportioned taxes on the basis they were
excise taxes.29
22 See, e.g., 2 Farrand’s Records 350 (“Mr King asked what was the precise meaning of direct taxation? No one
answd.”). Primary sources from the time period have supported multiple interpretations, from narrow definitions
limiting direct taxes to only those that can realistically be apportioned, perhaps just capitation and real property taxes,
to broader interpretations that would, for example, include all taxes other than consumption taxes. See, e.g., Bruce
Ackerman, Taxation and the Constitution, 99 COLUM. L. REV. 1, 14-19 (1999) (arguing that “direct tax” was primarily
a political, and not economic, term intended to be interpreted narrowly); Erik M. Jensen, The Taxing Power, the
Sixteenth Amendment, and the Meaning of “Incomes,” 33 ARIZ. ST. L.J. 1057 (2001) (arguing that the Framers
distinguished the two types on the basis that indirect taxes—which he thinks means taxes on consumption—have
inherent protection from government abuse because taxpayers can choose whether to consume if the tax gets too high).
23 Congress has in the past levied taxes on property. In 1813, Congress levied a direct tax on property totaling three
million dollars, which the statute apportioned among the 18 states and then among the counties (parishes) of each state.
Act of August 2, 1813, 2 Stat. 53. Thus, for example, $369,018.44 was apportioned to Virginia and $6,354.50 of that
amount apportioned to Fairfax County. Provisions for assessing and collecting the tax were contained in the Act of July
22, 1813. 3 Stat. 22 (1813). A direct tax on property totaling $20 million was levied in 1861, apportioned among the
states, territories, and the District of Columbia. Act of August 5, 1861, § 8, 12 Stat. 295. We have found no examples of
head taxes enacted by Congress.
24 See Hylton v. United States, 3 U.S. 171 (1796). But, see id. at 175 (Chase, J., concurring, “I am inclined to think, but
of this I do not give a judicial opinion, that the direct taxes contemplated by the Constitution, are only two, to wit, a
capitation, or poll tax, simply, without regard to property, profession, or any other circumstances; and a tax on land”)
(emphasis added).
25 See Hylton, 3 U.S. at 175 (upholding unapportioned tax on carriages); Pacific Insurance Co. v. Soule, 74 U.S. 433
(1869) (upholding tax on the business of insurance); Veazie Bank v. Fenno, 75 U.S. 533 (1869) (upholding tax on bank
notes); Scholey v. Rew, 90 U.S. 331 (1875) (upholding inheritance tax); Springer v. United States, 102 U.S. 586 (1881)
(upholding income tax).
26 28 Stat. 509 (1894) (imposing a tax on “the gains, profits, and income received in the preceding calendar year by
every citizen of the United States ... whether said gains, profits, or income be derived from any kind of property, rents,
interest, dividends, or salaries, or from any profession, trade, employment, or vocation carried on in the United States
or elsewhere.... ”).
27 The Court reasoned that income taxes on the gains derived from investments in real or personal property had a
substantial impact on the underlying assets and should be treated as direct taxes falling on the property. See Pollock,
157 U.S. at 583.
28 Some commentators would argue the decision has essentially been erased by the Court’s subsequent jurisprudence
and passage of the Sixteenth Amendment. See, e.g., Calvin H. Johnson, Fixing the Constitutional Absurdity of the
Apportionment of Direct Tax, 21 CONST. COMMENT. 295, 298-99 (2004) (“Pollock is dead on its holding as to the
income tax. Indeed, courts have a duty to distinguish Pollock in every case.”). On the other hand, some have argued
that “the reports of Pollock’s demise are exaggerated” and that “[a]n income tax is nothing like the classic forms of
indirect taxation, and the Supreme Court therefore got the result right in [Pollock]: an income tax is a direct tax as that
term was originally understood.” Erik M. Jensen, The Apportionment of “Direct Taxes”: Are Consumption Taxes
Constitutional?, 97 COLUM. L. REV. 2334, 2345 (1997); Jensen, supra note 23 at 1079.
29 See Nicol v. Ames, 173 U.S. 509 (1899) (tax on certain sales and exchanges of property); Knowlton v. Moore, 178
U.S. 41 (1900) (estate tax); Patton v. Brady, 184 U.S. 609 (1902) (tax on manufactured tobacco); Flint v. Stone Tracy
Co., 220 U.S. 107 (1911) (corporate franchise tax); but see Eisner v. Macomber, 252 U.S. 189 (1920) (striking an
unapportioned tax on a stock dividend that did not change the taxpayer’s proportionate ownership of the company,
relying on the Pollock holding that taxes on rents and income from real and personal property were direct taxes).
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Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis
The minimum essential coverage requirement is codified in the Internal Revenue Code as an
excise tax. For constitutional purposes, the Supreme Court has found excise taxes to be a broad
category of indirect taxes.30 It might be argued, for example, that the tax is properly characterized
as an excise tax imposed on earning income without maintaining health insurance for oneself and
one’s dependents.31 Excise taxes imposed on inaction are not unprecedented,32 although it does
not appear that any have been challenged on the grounds that it is unconstitutional to impose an
excise tax on a failure to act.
On the other hand, some have argued that the minimum essential coverage requirement is a tax
based on inaction and is effectively a capitation.33 Under this argument, “[a] tax on a person who
chooses not to act is precariously close to a tax on everyone with an exemption from the tax for
those that act.”34 In other words, a tax on the failure to act (i.e., buy health insurance) is
essentially a tax on “the state of mere existence.”35 However, others might point to the fact that
the tax would not be imposed on individuals with insufficient income as evidence that it should
not be characterized as a capitation. Additionally, some might compare it to existing tax
deductions and credits that are intended to encourage certain types of behaviors, such as the tax
benefits provided to homeowners.36 It might be argued that the minimum essential coverage
requirement is analogous to these types of provisions, and the fact that it takes a different form
(i.e., is not a deduction or credit) should not be constitutionally significant.
Resolving this point may require determining whether a generally applicable tax that is avoidable
if an individual takes some action constitutes a capitation. The federal courts have yet to explore
in detail the precise definition of capitations, also known as poll taxes, for purposes of the federal
Constitution. However, some insight into their meanings may be gleaned from the states’ attitudes
regarding poll taxes which were held contemporaneously with the ratification of the federal
constitution. For example, in Short v. State the Maryland Court of Appeals was confronted with
the meaning of poll taxes for purposes of the state constitution. At the time of the case in 1895,
every Maryland state constitution since 1776 had prohibited poll taxes.37 Maryland had also
required, at least since 1795, that all able-bodied state male residents either spend two days a year
improving the road system or pay seventy-five cents for road maintenance. Based upon
approximately one hundred years of coexistence between these two provisions, the Maryland
30 See Nicol v. Ames, 173 U.S. 509 (1899) (tax on certain sales and exchanges of property); Knowlton v. Moore, 178
U.S. 41 (1900) (estate tax); Patton v. Brady, 184 U.S. 609 (1902) (tax on manufactured tobacco); Flint v. Stone Tracy
Co., 220 U.S. 108 (1911) (tax on corporate franchise).
31 See also Galle, supra note 11 (arguing the tax could be characterized as imposed on “the use of personal wealth for
purposes other than the purchase of health insurance” or “on a particular form of arranging one’s economic affairs: the
choice to shift the risk of future medical needs from oneself to the social safety net—in effect, a tax on the use of the
existing system of free care, medicaid, and debtor-protection and bankruptcy law”).
32 Other provisions include the excise taxes on the failure of tax-exempt private foundations to distribute income (26
U.S.C. § 4942); failures of certain group health plans to provide continuation coverage or to meet certain requirements
(26 U.S.C. §§ 4980B, 4980D) and failures of certain investment vehicles to distribute income (26 U.S.C. §§ 4981,
4982).
33 See George Clark, Baucus “Excise” on Those Who Fail to Buy Insurance Raises Constitutional Issues, DAILY TAX
REPORT, Sept. 29, 2009.
34 Id.
35 Id.
36 See, e.g., 26 U.S.C. § 163(h) (permitting individuals to deduct qualifying home mortgage interest payments); 26
U.S.C. § 36 (providing a tax credit to qualifying “first-time” homebuyers).
37 Md. Dec. of R. art. 15.
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Court of Appeals determined that the meaning of poll taxes, as used in the state constitution in
1776, did not encompass the financial penalty imposed on those who failed to perform road
maintenance.38 A potential inference from this holding is that, at the time the Constitution was
drafted, the common understanding of poll taxes did not encompass a financial penalty imposed
on the failure to satisfy a lawful obligation to take some action. Therefore, while Congress’s
authority to impose the underlying mandate may be challenged, it is far from certain that a tax on
individuals who fail to comply with that mandate would be a capitation necessitating
apportionment.
If the minimum essential coverage requirement is classified as a tax on income, whether the tax is
direct or not becomes irrelevant as it would no longer be subject to apportionment by virtue of the
Sixteenth Amendment. Certain aspects of the tax might support its classification as a tax on
income since, for taxpayers with sufficient income, the amount of taxation would be directly
proportional to their excess household income above the filing threshold and only those taxpayers
with household income above the filing threshold would be subject to the tax at all. However, it is
not clear that a court would classify the minimum essential coverage requirement as a tax on
income since a significant component of the tax appears to have no relationship to a taxpayer’s
income, but is instead related to the lack of coverage under a health plan for themselves and their
dependents.
Power to Regulate Commerce
The Commerce Clause of the U.S. Constitution empowers Congress “[t]o regulate Commerce
with foreign Nations, and among the several States, and with the Indian Tribes.”39 The Supreme
Court developed an expansive view of the Commerce Clause relatively early in the history of
judicial review.40 This power has been cited as the constitutional basis for a significant portion of
the laws passed by the Congress over the last 50 years, and it currently represents one of the
broadest bases for the exercise of congressional powers.41 While the Supreme Court held in
United States v. South-Eastern Underwriters Association42 that Congress could regulate the
competitive practices of insurers under the Commerce Clause, it is unclear whether the minimum
essential coverage requirement could be considered regulation of insurance per se. Despite the
38 31 A. 322 (Md. 1895). Examples of poll taxes recited in the opinion were a specific sum levied on all persons, male
or female, free or slave, above the age of 16 for general support of the government and a tax of 40 pounds of tobacco
“per poll” to support clergy of the Church of England.
39 U.S. Const., Art. I, §8, cl. 3. It should be noted that the Commerce Clause is augmented by the Necessary and Proper
Clause, which allows Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers ... ” U.S. Const., Art. I, §8, cl. 18.
40 For instance, Chief Justice Marshall wrote in 1824 that “the power over commerce ... is vested in Congress as
absolutely as it would be in a single government ...” and that “the influence which their constituents possess at
elections, are ... the sole restraints” on this power. Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1, 197-98 (1824).
41 See CRS Report RL32844, The Power to Regulate Commerce: Limits on Congressional Power, by Kenneth R.
Thomas and Todd B. Tatelman.
42 322 U.S. 533 (1944). In response to the Court’s ruling in South-Eastern Underwriters, Congress explicitly
recognized the role of the states in the regulation of insurance with the passage of the McCarran-Ferguson Act of 1945.
The intent of the McCarran-Ferguson Act was to grant states the explicit authority to regulate insurance in light of the
South-Eastern Underwriters decision. Section 2(a) of the Act states: The business of insurance, and every person
engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such
business. 15 U.S.C. § 1012(a). However, under the Act, Congress also reserved to itself the right to enact federal
statutes that “specifically” relate to “the business of insurance.” 15 U.S.C. § 1012(b).
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breadth of powers that have been exercised under the Commerce Clause, whether the minimum
essential coverage requirement would be constitutional under the clause is a challenging question,
as it is a novel issue whether Congress may use the clause to require an individual to purchase a
good or a service.
Under modern Commerce Clause jurisprudence, the Supreme Court has found that the Commerce
Clause allows for three categories of congressional regulation: the channels of interstate
commerce; the instrumentalities of interstate commerce; and “those activities having a substantial
relation to interstate commerce ... i.e., those activities that substantially affect interstate
commerce.”43 It is likely that a court would evaluate Congress’s authority for enacting the
minimum essential coverage requirement under this third “substantially affects” category.
Three recent cases, United States v. Lopez, United States v. Morrison,44 and Gonzales v. Raich,45
as well as several historical decisions such as Wickard v. Filburn,46 govern much of the current
Commerce Clause analysis under the “substantially affects” category. These cases indicate that,
while the modern interpretation of the Commerce Clause is broad, congressional authority is not
without bounds.47 In a case that has been perceived as one of the Supreme Court’s most expansive
Commerce Clause rulings, Wickard v. Filburn, the Court was asked to determine whether the
clause permitted amendments to the Agricultural Adjustment Act of 1938 affecting the production
and consumption of homegrown wheat.48 In upholding the statute as constitutional, the Court held
that economic activities, regardless of their nature, could be regulated by Congress if the activity
exerts a substantial effect on interstate commerce.49 Although the Court admitted that one
family’s production alone would likely have a negligible impact on the overall price of wheat, if
combined with other personal producers, the effect would be substantial enough to make the
activity subject to congressional regulation.50 The Court concluded that Congress had a rational
basis for its action and its belief that, in the aggregate, keeping homegrown wheat outside of
federal regulation would have a substantial influence on interstate commerce.
From 1937 to 1995, after cases like Wickard and others, the Supreme Court did not hold a federal
statute to be beyond the scope of the authority vested in Congress by the Commerce Clause.
However, in 1995, in United States v. Lopez, the Court struck down a statute that made it a federal
crime to knowingly possess a firearm in a school zone because it exceeded Congress’s Commerce
Clause authority. In analyzing the statute under the “substantially affects” category, the Court
identified four major problems. First, it determined that the criminal statute at issue had no
connection with commerce or any sort of economic enterprise, and did not play an essential role
in a larger regulatory scheme. Secondly, the Supreme Court found it significant that there was no
jurisdictional element in the statute, which would ensure that firearm possession affected
interstate commerce in a particular instance. Third, the Court stated that the lack of congressional
findings regarding the impact of the offense on the national economy detracted from any
43 See United States v. Lopez, 514 U.S. 549, 558-59 (1995) (internal citations omitted).
44 529 U.S. 598 (2000).
45 545 U.S. 1 (2005).
46 317 U.S. 111 (1942).
47 See Lopez, 514 U.S. at 557; Morrison, 529 U.S. at 608.
48 In 1941, Mr. Filburn harvested an excess amount of 239 bushels for which he was fined pursuant to amendments to
the Agricultural Adjustment Act of 1938. 317 U.S. at 114.
49 Id. at 125.
50 Id.
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substantial relation it might have to interstate commerce. Finally, the Court rejected the
government’s argument that the statute was valid because possession of a firearm near a school
could result in violent crime, and this crime could affect the national economy. The Court
explained that if it were to accept the government’s arguments, it would be hard “to posit any
activity by an individual that Congress is without power to regulate.”51
The Supreme Court used the logic of Lopez in United States v. Morrison, where the Court
evaluated whether a federal statute that provided for a private right of action for victims of
gender-motivated violence fell within Congress’s power under the Commerce Clause. In finding
that this statute was beyond Congress’s authority under the Commerce Clause, the Court followed
the analysis in Lopez. First, the Court explained that “gender-motivated crimes are not, in any
sense of the phrase, economic activity.” Turning to the second prong of the Lopez analysis, the
Court noted that, like the Gun-Free School Zones Act, the statute lacked a “jurisdictional element
establishing that the federal cause of action is in pursuance of Congress’ power to regulate
interstate commerce.”52
The Court then discussed the existence of congressional findings regarding the effects of gender-
motivated violence on the national economy and interstate commerce. While noting that the
statute was supported by “numerous findings,”53 the Court stressed its declaration in Lopez that
“[s]imply because Congress may conclude that a particular activity substantially affects interstate
commerce does not necessarily make it so.” Finally, the Court considered the level of attenuation
between the federal statute and its effect on interstate commerce. In explaining why the statute
exceeded the boundaries of the Commerce Clause, the Court explained that the statute would
impermissibly provide Congress with the power “to regulate any crime as long as the nationwide,
aggregated impact of that crime has substantial effects on employment, production, transit, or
consumption.”54 Expanding upon this observation, the Court noted that to allow such regulation
of a non-economic activity would enable federal regulation of almost any activity, including
“family law and other areas of traditional state regulation.... ”55
In Gonzales v. Raich, the Supreme Court evaluated whether, under the Commerce Clause,
Congress had the power to apply the federal Controlled Substances Act’s (CSA’s) prohibition of
the manufacture and possession of marijuana to the local cultivation and use of marijuana that
was in compliance with California law. In holding that the CSA’s prohibition was within
Congress’s authority under the Commerce Clause, the Court relied on Wickard v. Filburn and the
idea that Congress can regulate purely intrastate activity that is not “commercial” if it concludes
that failure to regulate the activity would undercut federal regulation of the interstate market.56
However, the Court found that the standard for assessing the scope of Congress’s power under the
Commerce Clause is not whether the activity at issue, when aggregated, substantially affects
51 Lopez, 514 U.S. at 564.
52 Morrison, 529 U.S at 613.
53 The Court pointed to various legislative findings including findings that gender-motivated violence affected interstate
commerce by deterring potential victims from traveling interstate, from engaging in interstate business, by diminishing
national productivity, and increasing medical and other costs. Id. at 615 (quoting H.Rept. 103-711, at 385).
54 Id.
55 Id. It should be noted that after the decision in Lopez and Morrison, the question arose as to whether these cases were
an indicator of future restrictions on Congress’s power to regulate interstate commerce. However, it is arguable that the
Court intended Lopez and Morrison to have a limited effect, as the Court specifically reaffirmed much of its previous
Commerce Clause case law, including Wickard.
56 Raich, 545 U.S. at 18.
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interstate commerce; but rather, whether there exists a “rational basis” for Congress to have
reached that conclusion. Further, the Court distinguished Raich from Lopez and Morrison based
on the idea that in Raich, the regulated activity was “quintessentially economic.”57 The Court also
concluded that Congress had acted rationally in determining that the CSA’s prohibition of the
class of activities at issue was an “an essential part of the larger regulation of economic
activity.”58
In applying the 4-factor analysis used in Lopez and Morrison to the minimum essential coverage
requirement of PPACA,59 the first and fourth factors of these cases warrant the closest analysis.
Under the first factor of the test, it must be determined whether requiring individuals to purchase
health insurance is commercial or economic in nature. In Lopez, the gun control law at issue was
struck down by the Supreme Court, as was a cause of action based on gender-motivated crime in
Morrison, because the statutes did not have anything to do with an economic activity or
enterprise. While the regulation of the health insurance industry or the health care system would
likely be considered economic in nature, a requirement to purchase health insurance is more of an
open question. One could make the argument that the requirement to purchase health insurance is
economic in nature because it essentially requires an individual to be a consumer in the health
insurance market. In Lopez, the Court pointed out that the gun control law was not a regulation of
activity that “arises out of or is connected with a commercial transaction” which viewed in the
aggregate, substantially affects interstate commerce. A requirement to purchase health insurance
could be seen as a commercial transaction, especially since the minimum essential coverage
requirement can be fulfilled by purchasing insurance from a private insurance company.
On the other hand, it may be argued that the minimum essential coverage requirement goes
beyond the bounds of the Commerce Clause. One could argue that while regulation of the health
insurance industry or the health care system could be considered economic activity, regulating a
choice to purchase health insurance is not. It may also be questioned whether a requirement to
purchase health insurance is really a regulation of an economic activity or enterprise, if
individuals who would be required to purchase health insurance are not, but for this regulation, a
part of the health insurance market. In general, Congress has used its authority under the
Commerce Clause to regulate individuals, employers, and others who voluntarily take part in
some type of economic activity. While in Wickard and Raich, the individuals were participating in
their own home activities (i.e., producing wheat for home consumption and cultivating marijuana
for personal use), they were acting of their own volition, and this activity was determined to be
economic in nature and affected interstate commerce. However, a requirement could be imposed
on some individuals who do not engage in any economic activity relating to the health insurance
market. This is a novel issue: whether Congress can use its Commerce Clause authority to require
a person to buy a good or a service and whether this type of required participation can be
considered economic activity. Still, while it may seem like too much of a bootstrap to force
57 Id. at 25. The Court explained that “the CSA regulates the production, distribution, and consumption of commodities
for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture
of an article of commerce is a rational ... means of regulating commerce in that product.” Id. at 26.
58 Id. at 26-27. See also Lopez, 514 U.S., at 561.
59 As discussed above, after Lopez and Morrison, whether a regulation has a substantial effect on interstate commerce
requires reviewing courts to consider the following four factors: (1) whether the regulated activity is commercial or
economic in nature; (2) whether an express jurisdictional element is provided in the statute to limit its reach; (3)
whether Congress made express findings about the effects of the activity on interstate commerce; and (4) whether the
link between the activity and the effect on interstate commerce is attenuated. United States v. Stewart, 348 F.3d 1132,
1136-37 (9th Cir. 2003) (citing Morrison, 529 U.S. at 610-12).
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individuals into the health insurance market and then use their participation in that market to say
they are engaging in commerce, there is plenty of evidence that the purchase of health insurance
has an effect on the commerce of the nation. For example, in 2008, health care expenditures in the
United States grew 4.4% to $2.3 trillion, or $7,681 per person, and accounted for 16.2% of gross
domestic product.60
Perhaps one example of the regulation of voluntary individual behavior is the use of the
Commerce Clause to prohibit criminal activity. While in Lopez and Morrison the Supreme Court
found that the criminal statute exceeded Congress’s Commerce Clause authority, courts have
upheld other federal criminal statutes as acceptable under the Commerce Clause.61 One notable
case, U.S. v. Bishop, upheld congressional authority to enact a carjacking statute. In Bishop, the
court, in dicta, briefly addressed the voluntariness factor, finding that commerce does not have to
be a “voluntary economic exchange.”62 In addition, certain federal criminal statutes require a
person to take action, and penalize that person for failure to take that action. For example, an
individual who willfully fails to pay a child support obligation with respect to a child who resides
in another state may be subject to criminal penalties, subject to certain requirements.63 However,
while criminal statutes evaluated under the Commerce Clause may provide some insight as to
how a court would evaluate a requirement to purchase health insurance, these cases are not
entirely instructive.
In evaluating whether the minimum essential coverage requirement and the effect on interstate
commerce is attenuated, one may point to evidence of the effect that the requirement to purchase
health insurance would have on the insurance industry and the health care system as a whole. One
could argue that because most individuals do, at some point, become ill and require health care, a
requirement that all persons purchase health insurance coverage would benefit the orderly flow of
health care services in interstate commerce. As pointed out in the findings accompanying the
minimum essential coverage requirement, the requirement regulates activity such as “the
economic and financial decisions about how and when health care is paid for, and when health
insurance is purchased. In the absence of the requirement, some individuals would make an
economic and financial decision to forego health insurance coverage and attempt to self-insure,
which increases financial risks to households and medical providers.”64 Also, because one of the
motivating factors for a requirement to obtain health insurance may be to get healthy individuals
who do not have health insurance to purchase it (so as to offset the cost of the individuals who
need greater, more expensive care), this also would contribute to the proper functioning of the
health care system. Still, one could argue that if the commerce power can be used to mandate the
purchases of a private individual, it could be perceived as virtually unlimited in scope.65 Based on
60 Centers for Medicare and Medicaid Services, National Health Expenditure Data Fact Sheet, available at
http://www.cms.gov/NationalHealthExpendData/25_NHE_Fact_Sheet.asp.
61 See, e.g., Perez v. U.S., 402 U.S. 146 (1971) (conviction for loan sharking affirmed because Consumer Credit
Protection Act held to be a valid exercise of the Commerce Clause); United States v. Ogba, 526 F.3d 214 (5th Cir.
2008) (health care fraud statute acceptable under Commerce Clause); United States v. Bishop, 66 F.3d 569(3rd Cir.
1995), cert. denied 516 U.S. 1032 (1995) (Congress had not exceeded its power under the Commerce Clause in
enacting a carjacking statute).
62 Id. But see the dissent in Bishop, 66 F.3d at 592 (Becker, J., dissenting) (arguing that Congress’s Commerce Clause
power under the substantially affects category is limited to regulation of “a voluntary economic exchange.”).
63 18 U.S.C. § 228.
64 P.L. 111-148, § 1501(a)(2).
65 See generally David B. Rivkin Jr. and Lee A. Casey, Mandatory Insurance Is Unconstitutional, Wall Street Journal,
Sept. 18, 2009 (arguing that “Congress could evade all constitutional limits by “taxing” anyone who doesn’t follow an
(continued...)
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similar arguments made in Lopez and Morrison, there may be questions raised about whether
Congress can require the purchase of any good or service based on the effect such purchases
could have on an industry or the economy as a whole.
Also, while perhaps not as important to the instant inquiry as the other Lopez/Morrison factors, a
reviewing court may examine the presence of congressional findings for purposes of commerce
clause analysis. PPACA includes detailed findings regarding the effect that the minimum essential
coverage requirement would have on interstate commerce.66 However, as mentioned above, it
appears that the presence of congressional findings may be helpful, but not determinative, of
Congress’s authority to legislate under the Commerce Clause. In addition, as discussed in Lopez
and Morrison, a reviewing court may also examine the fact that PPACA does not contain an
explicit jurisdictional element that insures that the statute affects interstate commerce. This
element could have been satisfied by a statement, such as one providing that any person using
medical care in or affecting interstate commerce must have health insurance. It is possible that a
court may overlook the need for a jurisdictional element, especially in light of Congress’s
findings that indicate the effects that the minimum essential coverage requirement has on
interstate commerce.67 However, should a reviewing court find that absence of a jurisdictional
element as essential for Congress’s ability to enact the minimum essential coverage requirement,
it seems possible that Congress may be able to amend PPACA to include this element.68
Following the reasoning of Raich, a court may examine whether Congress rationally concluded
that persons failing to have health insurance have a substantial effect on interstate commerce. One
arguing in favor of the constitutionality of the minimum essential coverage requirement may
point to the fact that a health insurance mandate would presumably lower the uninsured
population. It has been suggested that Americans without health coverage burdens our health care
system and adds strain on the economy.69 As indicated in the congressional findings
accompanying the minimum essential coverage requirement, the economy loses up to $207
billion a year because of the poorer health and shorter lifespan of the uninsured.70 Further,
according to these findings, in 2008, cost of providing uncompensated care to the uninsured was
$43 billion and these amounts are paid for when health care providers pass on the cost to private
insurers, which pass on the cost to those who are insured. Evidence like this could demonstrate a
rational basis for Congress’s enactment of a requirement to purchase health insurance.
(...continued)
order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat
your vegetables.”)
66 P.L. 111-148, §1501(a)(2).
67 Further, if a court finds the minimum essential coverage requirement to be, similar to the provisions in Wickard and
Raich, an essential component of a larger economic regulatory scheme, then the need for a jurisdictional element may
be alleviated. See discussion of Raich infra.
68 It may be noted that Congress replaced the provision struck down in Lopez with an amended version that makes it
unlawful for an individual “knowingly to possess a firearm that has moved in or that otherwise affects interstate or
foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.” See 18
U.S.C. § 922(q)(2)(A) (emphasis added). This amendment demonstrates that the required nexus to interstate commerce
can, at least in some cases, may be fixed.
69See, e.g., Health Care Affordability and the Uninsured, Testimony of Diane Rowland to the House of Representatives,
Committee on Ways and Means, Health Subcommittee, available at http://www.kff.org/uninsured/upload/7767.pdf.
70 P.L. 111-148, § 1501(a)(2).
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In addition, based on Raich, if a requirement to purchase health insurance is not considered
economic or commercial in nature, it should be determined whether the requirement is “an
essential part of a larger regulation of economic activity.” One may argue that a minimum
essential coverage requirement, while not commercial in nature, is an essential part of Congress’s
current regulation of the health care system or industry. A reviewing court could consider whether
the absence of a requirement to purchase health care would undercut the regulation of the health
care as a whole. In making this determination, a court may look to the involvement of the federal
government in the regulation of health care generally to decide whether a requirement to purchase
health insurance could be seen as an essential component of this regulation. Given the federal
government’s fairly significant role in health care regulation (e.g., ERISA, the Public Health
Service Act), the argument that the requirement to purchase insurance is an “essential part” of the
regulation may become more viable. In addition, since the minimum essential coverage
requirement is part of comprehensive act dealing with many aspects of health care, this may
reinforce the idea that it is acceptable under the Commerce Clause as part of a larger health care
reform effort.71
Further, it may be argued that the minimum essential coverage requirement plays an integral role
within PPACA itself, because of certain new insurance requirements that require health insurers
to accept every individual that applies for coverage, and prevent insurers from imposing
exclusions from coverage based on preexisting conditions. One may argue that without a
minimum essential coverage requirement, individuals could wait to purchase health insurance
until they needed care. As congressional findings point out, “[t]he [minimum essential coverage]
requirement is essential to creating effective health insurance markets in which improved health
insurance products that are guaranteed issue and do not exclude coverage of pre-existing
conditions can be sold.”72 On the other hand, one could point out that under Section 1501 of
PPACA, an individual could decide to pay the penalty associated with the minimum essential
coverage requirement and avoid purchasing health insurance. If there were to be large scale non-
compliance with the requirement to purchase health insurance, this may weaken the idea that
minimum essential coverage requirement is an essential part of this health care regulation.
Health Insurance Coverage Requirements and the
Fifth and Tenth Amendments
Some commentators have questioned whether a requirement to have health insurance might
violate certain protections found under the U.S. Constitution.73 This section provides a general
71 The Court has also suggested that challenges to non-commercial aspects of a larger economic regulatory scheme may
be evaluated under the Necessary and Proper Clause. Raich, 545 U.S at 36 (Scalia, J., concurring) (“Congress’
authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed
against economic activities that have a substantial effect on interstate commerce.”). Using this rationale, it could be
argued that a requirement that individuals obtain health insurance is necessary for the proper functioning of the broader
health care regulation established under PPACA, so that such a mandate would pass Constitutional muster. Id. at 22.
The kinds of factors likely to be considered are (1) the historic breadth of the Necessary and Proper Clause; (2) the
history of federal involvement in this area; (3) the reason for the statute’s enactment; (4) the statute’s accommodation
of state interests; and (5) whether the scope of the statute is too attenuated from Article I powers. United States v.
Comstock, No. 08–1224 slip. op. (May 17, 2010).
72 P.L. 111-148, § 1501(a)(2).
73 See e.g., Peter Urbanowicz and Dennis G. Smith, Constitutional Implications of an “Individual Mandate” in Health
Care Reform, The Federalist Society for Law and Public Policy Studies, available at http://www.fed-soc.org/doclib/
(continued...)
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discussion of how a court might evaluate a health insurance requirement that is challenged on
Fifth Amendment due process, takings clause, or equal protection grounds, as well as under the
Tenth Amendment. In general, it seems unlikely that a challenge to the minimum essential
coverage requirement would be successful under these provisions.
Substantive Due Process
The Fifth Amendment states, in relevant part, that “[n]o person shall be ... deprived of life, liberty,
or property, without due process of law.... ”74 The Supreme Court has understood due process to
protect both procedural and substantive rights. Under the doctrine of substantive due process, the
Court has held that certain fundamental rights, while not expressly recognized in the text of the
Constitution, are subsumed within the notion of liberty in the Due Process Clause. If the Court
determines that a right is fundamental, any government infringement of that right will be subject
to strict scrutiny. Strict scrutiny is the most rigorous form of judicial review applied by a
reviewing court, and government action will survive strict scrutiny only if such action is narrowly
tailored to achieving a compelling government interest.75 Where there is no fundamental right
involved, the government must demonstrate that there is a rational basis for its action.76 This level
of judicial review, referred to as rational basis review, is characterized by its deference to
legislative judgment. Because of the distinction between strict scrutiny and rational basis review,
a determination of whether there is a fundamental right is central to a substantive due process
analysis.
To date, the Supreme Court has not articulated a fundamental right to health care.77 Indeed, the
words “health” or “medical care” do not appear anywhere in the text of the Constitution. Thus,
rights of individuals to health care services derive from statutory rights (with a few such rights
also set forth in state constitutions) and have most often concerned the provision of medical care
to poor persons. In challenging a health insurance mandate on due process grounds, it is possible
that one could allege a fundamental right to be uninsured, or to not purchase health insurance.
(...continued)
20090710_Individual_Mandates.pdf. But see generally Simon Lazarus, Mandatory Health Insurance, Is It
Constitutional? American Constitutional Society Issue for Law and Policy Issue Brief, available at
http://www.acslaw.org/pdf/Lazarus%20Issue%20Brief%20Final.pdf.
74 U.S. Const. Amend. V. See also U.S. Const. Amend. XIV, §1, which contains a similar clause that applies to states.
75 Roe v. Wade, 410 U.S. 113, 155 (1973). See also Carey v. Population Services Int’l, 431 U.S. 678, 686 (1977).
Fundamental rights found by the Court include the right to use contraception, marry, procreate, have family
relationships, and control the education of one’s children.
76 Among its substantive due process cases, the Court has held that welfare benefits, housing, federal employment, a
funded education, pregnancy-related medical care, and medically necessary abortions are not fundamental rights, and it
evaluated the statutes under a rational basis review. William P. Gunnar, Article: The Fundamental Law That Shapes the
United States Health Care System: Is Universal Health Care Realistic Within the Established Paradigm? 15 Ann.
Health L. 151 (2006).
77 While the U.S. Constitution does not explicitly set forth a right to health care, the Supreme Court’s decisions in the
areas of the right to privacy and bodily integrity suggest the Constitution implicitly provides an individual the right to
access or decline health care services at one’s own expense from willing medical providers. See Roe v. Wade, 410 U.S.
113 (1973) (constitutionally protected right to choose whether or not to terminate a pregnancy) and Cruzan v. Missouri
Department of Health, 497 U.S. 261 (1990) (constitutional right to refuse medical treatment that sustains life), both of
which involve a right to bodily integrity that may be extended to a person seeking health care services at his or her own
expense. For a general discussion of constitutional rights related to health care, see CRS Report R40846, Health Care:
Constitutional Rights and Legislative Powers, by Kathleen S. Swendiman.
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However, this is not a fundamental right that has been recognized by the Supreme Court. 78 While
the Supreme Court has recognized a constitutional right to privacy, and, arguably within that
right, a right to be left alone (i.e., protection against “invasion of [one's] indefeasible right of
personal security, personal liberty and private property”),79 it does not seem that a requirement to
make a purchase of health insurance would rise to the level of interference with this fundamental
right. Thus, because there does not appear to be an imposition on any fundamental right that
would trigger heightened scrutiny, the minimum essential coverage requirement would likely be
evaluated under a rational basis review and upheld.
It is possible that a reviewing court would evaluate the requirement to purchase health insurance
as economic legislation. In evaluating claims that economic regulations violate a person’s rights
under the Due Process clause, the Court has pronounced a strict “hands-off” standard of judicial
review and implements a rational basis test.80 As a “legislative Act[] adjusting the burdens and
benefits of economic life,” such a law enjoys a strong “presumption of constitutionality,” and the
“burden is on one complaining of a due process violation to establish that the legislature has acted
in an arbitrary and irrational way.”81 If the economic legislation “is supported by a legitimate
legislative purpose furthered by rational means, judgments about the wisdom of such legislation
remain within the exclusive province of the legislative and executive branches.”82 The Court has
suggested that the accommodation among interests which the legislative branch has “struck may
have profound and far-reaching consequences ... [and] provides all the more reason for this Court
to defer to the congressional judgment unless it is demonstrably arbitrary or irrational.”83
If a court were to view the minimum essential coverage requirement as economic legislation (i.e.,
a legislative act “adjusting the burdens and benefits of economic life”), it is likely that a court
would implement rational basis review and uphold the statute.84 The analysis of economic
regulation mandated by the present jurisprudence of substantive due process requires only that
Congress act rationally and reasonably, that its decisions need only be within the parameters of
78 In challenging the minimum essential coverage requirement on due process grounds, it is possible that one could
allege a fundamental right to not purchase health insurance. However, this is not a fundamental right that has been
recognized by the Supreme Court. But see Roy G. Spece, Jr., Article: A Fundamental Constitutional Right of the
Monied to “Buy Out Of” Universal Health Care Program Restrictions Versus the Moral Claim of Everyone Else to
Decent Health Care: An Unremitting Paradox of Health Care Reform? 3 J. Health & Biomed. L. 1 (2007) (alleging
that “many would argue that persons surely have a fundamental right to purchase standard [health] care and insurance
necessary to obtain that care”).
79 Griswold v. Connecticut, 381 U.S. 479 (1965) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).
80 Arguably, this approach to economic legislation began with Nebbia v. New York, 291 U.S. 502 (1934), in which the
Court upheld a state statute establishing a commission to fix milk prices as a reasonable health and welfare measure.
The Court asked only that state regulation not be unreasonable or arbitrary and that the regulation have a real relation to
the object of the legislation. A divided Court in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), upheld a state
minimum-wage law. “The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the
deprivation of liberty without due process of law.... [R]egulation which is reasonable in relation to its subject and
adopted in the interests of the community is due process.” Id. at 391. For additional background on the history and
jurisprudence of economic substantive due process, see Congressional Research Service, CONSTITUTION OF THE UNITED
STATES OF AMERICA, ANALYSIS AND INTERPRETATION, p. 1682 et seq.
81 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). See also Concrete Pipe & Products of California, Inc. v.
Construction Laborers Pension Fund, 508 U.S. 602, 637-39 (1993).
82 PBGC v. R. A. Gray & Co., 467 U.S. 717, 729 (1984).
83 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 83-4 (1978).
84 It should be noted that even if a court were not to consider a requirement to purchase health insurance as “economic
regulation,” it is still likely that a court would evaluate a requirement to purchase health insurance under a rational basis
review, given the absence of a fundamental right.
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the possible approaches that Congress may take. As indicated by the congressional findings
accompanying the minimum essential coverage requirement, the requirement would, for example,
help to “increase the number and share of Americans who are insured” and “improve financial
security for families.” 85 It is possible that the requirement to buy health insurance could be seen
as rationally related to these goals, even if other legislative means might be presumed more
effective in achieving them. Someone seeking to challenge the minimum essential coverage
requirement would likely have to demonstrate to a court that Congress’s decision to enact the
requirement was arbitrary or irrational. However, it seems unlikely that a reviewing court would
see Congress’s decision to enact the mandate as irrational, given the deference given to Congress
for economic regulation and the importance placed on having health insurance in the U.S. health
care system.
Equal Protection
Constitutional challenges that allege discrimination against certain persons are premised either on
the equal protection guarantees of the Fourteenth Amendment86 or the equal protection
component of the Fifth Amendment.87 While the Fourteenth Amendment prohibits discriminatory
conduct by the states, the Fifth Amendment forbids such action by the federal government.
It has been said that “[Equal protection] does not reject the government’s ability to classify
persons or ‘draw lines’ in the creation and application of laws, but it does guarantee that those
classifications will not be based upon impermissible criteria or arbitrarily used to burden a group
of individuals.”88 A classification will not offend the Constitution unless it is characterized by
invidious discrimination,89 and the Court has adopted certain levels of review to establish the
presence of this discrimination. When a law’s classification burdens a fundamental interest (e.g.,
privacy, marriage, or voting) or there is a suspect classification (e.g., race or country of origin),
strict scrutiny is applied. A classification will survive strict scrutiny if the government can show
that it is necessary to achieving a compelling state interest.90 By contrast, when the challenged
law does not involve a fundamental right or a suspect classification, a court may undertake
rational basis review. This least restrictive form of judicial review allows a classification to
survive an equal protection challenge if the classification is rationally related to a legitimate
85 §1501(a) of P.L. 111-148.
86 U.S. Const. Amend. XIV, § 1. The Fourteenth Amendment provides, in relevant part,
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
87 The Equal Protection Clause of the Fourteenth Amendment, which by its terms applies only to the states, has been
held applicable to the federal government as well through the Due Process Clause of the Fifth Amendment. A 1995
Supreme Court decision notes that the Court has for decades “treat[ed] the equal protection obligations imposed by the
Fifth and Fourteenth Amendments as indistinguishable.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995).
See also Buckley v. Valeo, 424 U.S. 1, 93 (1976) (“Equal protection analysis in the Fifth Amendment area,” the Court
has said, “is the same as that under the Fourteenth Amendment.”).
88 Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.2 (3d ed.
1999).
89 See Ferguson v. Skrupa, 372 U.S. 726, 732 (1963).
90 See San Antonio Independent School District v. Rodriquez, 411 U.S. 1 (1973).
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government interest.91 This level of review is characterized by its deference to legislative
judgment. Most economic regulations are subject to rational basis review.92
In addition, similar to other economic regulation, classifications made for federal tax purposes are
generally constitutionally permissible so long as “they bear a rational relation to a legitimate
governmental purpose.”93 Courts typically show great deference to the tax classifications made by
legislatures in recognition of “the large area of discretion which is needed by a legislature in
formulating sound tax policies.”94 The Supreme Court has noted that, “[i]t has … been pointed
out that in taxation, even more than in other fields, legislatures possess the greatest freedom in
classification.”95 Because legislatures have “especially broad latitude” in creating tax
classifications,96 the bar is low for Congress to adequately justify its rationale for making the
classifications used.97 Nevertheless, some tax classifications based on a suspect classification, or
that interfere with a fundamental right are subject to higher levels of scrutiny.98
Under the minimum essential coverage requirement of PPACA, questions regarding equal
protection may arise due to the fact that the requirement to enroll in health coverage and the
corresponding tax only apply to certain individuals. For example, as mentioned above,
individuals who have coverage through a federal health care program such as Medicare would be
deemed to have met the minimum essential coverage requirements. Under PPACA, exemptions
from the tax would be made for various individuals, including nonresident aliens, qualified U.S.
citizens and residents living abroad, and bona fide residents of the U.S. possessions. Additionally,
no penalty would be imposed on individuals who could not afford coverage, taxpayers with
income less than 100% of the poverty line, and individuals granted hardship exceptions. While a
person subject to the minimum essential coverage requirement could allege discrimination based
on the fact that certain other groups would not have to obtain health insurance or pay a tax, the
classifications made by these provisions and the corresponding tax seem unlikely to rise to the
level of an equal protection violation. Because there does not seem to be a fundamental right that
is burdened by the minimum essential coverage requirement,99 and it appears that no suspect class
would be subject to discriminatory treatment, it seems that rational basis scrutiny would be
applied by a reviewing court. Also, given that one could envision a legitimate government interest
91 It should be noted that the Court has also recognized an intermediate level of scrutiny. See Craig v. Boren, 429 U.S.
190, 197 (1976). A classification will survive intermediate scrutiny if it is substantially related to achieving an
important government objective. Sex classifications are subject to intermediate scrutiny.
92 The Supreme Court has opined that “In areas of social and economic policy, a statutory classification that neither
proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification....
Where there are ‘plausible reasons’ for Congress’ action, ‘our inquiry is at an end.’” FCC v. Beach Communications,
508 U.S. 307, 313-314 (1993) (quoting United States Railroad Retirement Bd. v. Fritz, 449U.S. 166, 179 (1980)).
93 Regan v. Taxation with Representation of Washington, 461 U.S. 540, 547 (1983).
94 Taxation with Representation, 461 U.S. at 547 (quoting Madden v. Kentucky, 309 U.S. 83, 88 (1940)).
95 Id. (quoting Madden, 309 U.S. at 88).
96 Id.
97 See id. at 547-48 (“‘[T]he presumption of constitutionality can be overcome only by the most explicit demonstration
that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on
the one attacking the legislative arrangement to negative every conceivable basis which might support it.’ Madden v.
Kentucky, 309 U.S. 83, 87-88 (1940)”).
98 See Taxation with Representation of Washington, 461 U.S. at 547.
99 As previously discussed, neither the Constitution nor the Supreme Court’s jurisprudence suggests a fundamental
right to health care. See discussion of Substantive Due Process supra.
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in making the distinction between individuals who, for example, have higher incomes and those
who have lower incomes and may have difficulty finding affordable health insurance coverage,
an equal protection challenge to the minimum essential coverage requirements or the
corresponding taxes would likely be unsuccessful.
Takings Clause
Under the Takings Clause of the Fifth Amendment, no property shall be taken for public use
without just compensation.100 As the Supreme Court has explained, the language of the Takings
Clause “requires the payment of compensation whenever the government acquires private
property for a public purpose.”101 The clause, extensively explicated by the courts in recent
decades, seeks to strike a balance between societal goals and the burdens imposed on property
owners to achieve those goals. “Property” under the Takings Clause includes land and personal
property, both tangible and intangible. Money is also generally held to be property under the
clause.102
In a few situations, government actions that appear to be obvious appropriations of property are
deemed outside the scope of takings law.103 While the Supreme Court has found that a taking
claim may arise when government appropriates money from a specifically identified fund of
money,104 a statute imposing generalized monetary liability has not been considered by courts to
be a taking.105 Thus, with regard to the minimum essential coverage requirement, it is unlikely
that a court would find the amounts required as part of the mandate to be paid for insurance to be
a taking. This outcome is further emphasized by the fact that there is a benefit obtained with
purchase of the insurance that could offset the economic impact of the regulation.106 Further, it
would be unlikely for a court to find the imposition of an excise tax a taking, as the general rule
that money paid in taxes is not deemed to be taken, unless the tax is so arbitrary as to be
“confiscatory.”107
100 For a general discussion of takings law, see CRS Report RS20741, The Constitutional Law of Property Rights
“Takings”: An Introduction, by Robert Meltz, The Constitutional Law of Property Rights ‘Takings’: An Introduction,
by Robert Meltz.
101 Brown v. Legal Found., 538 U.S. 216, 232 (2003).
102 Phillips v. Wash. Legal Found., 524 U.S. 156, 160 (1998); Webb’s Fabulous Pharms., Inc. v. Beckwith, 449 U.S.
155, 164-65 (1980). See generally Eastern Enterprises v. Apfel, 524 U.S. 498, 540, 554 (1998) (in a plurality opinion,
five justices opine that regulatory actions requiring the payment of money are not takings).
103 Robert Meltz, Takings Law Today: A Primer for the Perplexed, 34 ECOLOGY L.Q. 307, 327 (2007).
104 Brown v. Legal Found., 538 U.S. 216, 232 (2003); Webb’s Fabulous Pharms., Inc. v. Beckwith, 449 U.S. 155
(1980).
105 See, e.g., Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1338-40 (Fed. Cir. 2001) (en banc); Swisher
International, Inc. v. Shafer, 550 F.3d 1046 (11th Cir. 2008). See generally Eastern Enterprises v. Apfel, 524 U.S. 498,
540, 554 (1998) (in a plurality opinion, five justices opined that regulatory actions requiring the payment of money
were not takings).
106 See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 137 (1978), where the Supreme Court made clear
that certain land development rights conferred on the landowner who claimed to be subject to a taking “mitigate
whatever financial burdens the law has imposed ... and ... are to be taken into account in considering the impact of
regulation.”
107 See, e.g., County of Mobile v. Kimball, 102 U.S. 691, 703 (1880); Branch v. United States, 69 F.3d 1571, 1576-77
(Fed. Cir. 1995) (collecting cases).
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Tenth Amendment
The Tenth Amendment provides that the “powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” While this language would appear to represent one of the most clear examples of a
federalist principle in the Constitution, it does not appear likely to have a significant impact in
relationship to the instant act. While the Tenth Amendment is often cited by the Supreme Court in
Commerce Clause cases as a guiding principle of the concept of limited government, the Tenth
Amendment by itself appears to only address the process by which the federal government
regulates the states.
In New York v. United States,108 Congress had attempted to regulate in the area of low-level
radioactive waste. In a 1985 statute, Congress provided that states must either develop legislation
on how to dispose of all low-level radioactive waste generated within the state, or the state would
be forced to take title to such waste, which would mean that it became the state’s responsibility.
The Court found that Congress had attempted to require the states to perform the regulation, and
decreed that the failure to do so would require the state to deal with the financial consequences of
owning large quantities of radioactive waste. In effect, Congress sought to “commandeer” the
legislative process of the states.
In the New York case, the Court found that this power was not found in the text or structure of the
Constitution, and it was thus a violation of the Tenth Amendment. A later case presented the
question of the extent to which Congress could regulate through a state’s executive branch
officers. This case, Printz v. United States,109 involved the Brady Handgun Act. The Brady
Handgun Act required state and local law-enforcement officers to conduct background checks on
prospective handgun purchasers within five business days of an attempted purchase. After a
historical study of federal commandeering of state officials, the Court concluded that
commandeering of state executive branch officials was, like commandeering of the legislature,
outside of Congress’s power, and consequently a violation of the Tenth Amendment.
There does not appear to be a significant argument that the minimum essential coverage
requirement would “commandeer” a state legislature or executive branch officials, as the
obligations imposed by the individual mandate would be upon individuals. Consequently, under
existing case law, it would not appear that there would be a significant argument that the act
would violate the Tenth Amendment.
Religious Exemptions to Minimum Essential
Coverage Requirements
Requiring individuals to obtain health insurance may conflict with some individuals’ religious
beliefs.110 Accordingly, legislation that would require individuals to obtain health insurance might
108 505 U.S. 144 (1992).
109 521 U.S. 898 (1997).
110 Some religions teach that the religious community must be responsible for social services that otherwise might be
included in health insurance coverage. The Amish, for example, believe that the community has an obligation to
provide the assistance that would be provided by Medicare programs to community members in need of such
(continued...)
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raise constitutional issues of religious freedom and equal protection.111 These issues may be
addressed with a religious exemption to the minimum essential coverage requirement. Potential
religious exemptions must meet the requirements of the First Amendment’s religion clauses,
which serve as guarantees that individuals will neither be required to act under a prescribed
religious belief (the Establishment Clause) nor be prohibited from acting under their chosen
religious beliefs (the Free Exercise Clause). Religious exemptions also may raise equal protection
issues under the Fifth Amendment. It is important to note that the outcome of the legal analysis
under the First Amendment may differ based on the form of the requirement proposed.
Constitutional and Statutory Rules Regarding Religious Exercise
Constitutional and statutory rules regarding free exercise of religion would determine whether a
religious exemption would be required for legislation requiring individuals to have health
insurance. The First Amendment of the U.S. Constitution provides that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof.... ”112 These
clauses are known respectively as the Establishment Clause and the Free Exercise Clause.
Although the U.S. Supreme Court historically had applied a heightened standard of review to
government actions that allegedly interfered with a person’s free exercise of religion,113 the Court
reinterpreted that standard in 1990. Since then, the Court has held that the Free Exercise Clause
never “relieve[s] an individual of the obligation to comply with a valid and neutral law of general
applicability.”114 Under this interpretation, the constitutional baseline of protection was lowered,
meaning that laws that do not specifically target religion or do not allow for individualized
assessments are not subject to heightened review under the Constitution.
In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA), which statutorily
reinstated the heightened standard of review for government actions interfering with a person’s
free exercise of religion. Although the Court later struck down as unconstitutional portions of
RFRA that applied to state and local governments, the heightened standard provided by RFRA
still applies to federal government actions.115 RFRA provides that a statute or regulation of
general applicability may lawfully burden a person’s exercise of religion only if it (1) furthers a
compelling governmental interest, and (2) uses the least restrictive means to further that
interest.116 This two-part standard is sometimes referred to as strict scrutiny analysis. The
(...continued)
assistance, and have challenged laws requiring their participation in such programs as unconstitutional. See United
States v. Lee, 455 U.S. 252 (1982). Other religions teach that spiritual treatment through prayer, rather than medical
treatment, is the appropriate method to treat ailments. See Christian Science, 1 Encyclopedia of Politics and Religion
141 (Robert Wuthnow, ed., 2nd ed.) (2006).
111 For background and legal analysis of religious exemptions in mandatory healthcare programs generally, see CRS
Report RL34708, Religious Exemptions for Mandatory Health Care Programs: A Legal Analysis, by Cynthia
Brougher.
112 U.S. Const. Amend. I. For a discussion of constitutional and statutory standards of review used in relation to the
First Amendment, see CRS Report RS22833, The Law of Church and State: General Principles and Current
Interpretations, by Cynthia Brougher.
113 See Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).
114 Employment Div., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872, 879 (1990).
115 See City of Boerne, Texas v. Flores, 521 U.S. 407 (1997).
116 42 U.S.C. § 2000bb-1(b). In some instances, RFRA may be preempted by another federal law. See S.Rept. 103-111,
at 12-13 (1993).
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Supreme Court has held that in order for the government to prohibit exemptions to generally
applicable laws, the government must “demonstrate a compelling interest in uniform application
of a particular program by offering evidence that granting the requested religious
accommodations would seriously compromise its ability to administer the program.”117 Although
RFRA currently applies as a general limitation on federal actions, Congress may amend its scope
or may exempt future statutes from complying with RFRA.118 Thus, when considering proposed
legislation that may conflict with requirements imposed by RFRA, Congress may avoid the
conflict by exempting the legislation from RFRA.
Legal Analysis of Religious Exemptions for the Minimum Essential
Coverage Requirement
Analysis of the issues raised by religious exemptions for the minimum essential coverage
requirement must address two questions: (1) whether the U.S. Constitution requires a religious
exemption to ensure the free exercise rights of individuals who may have religious objections to
health insurance; and (2) if a religious exemption is not constitutionally required, but included
nonetheless, whether it would be constitutional under the First and Fifth Amendments. The issues
addressed in this section stem from religious exemptions offered in other contexts, and some
issues that may be raised by future proposals may not be discussed.
Is a Religious Exemption Constitutionally or Statutorily Required for a
Minimum Essential Coverage Requirement?
As a neutral law of general applicability that potentially burdens religious exercise, the minimum
essential coverage requirement would be subject to analysis under RFRA. Generally, it does not
appear that a religious exemption is required for legislation mandating health coverage. The
Supreme Court and other lower courts generally have allowed federal mandates that relate to
public health, but nonetheless interfere with religious beliefs, to continue without exemptions.119
Under the strict scrutiny analysis, an exemption would be required only if the government does
not have a compelling state interest that is achieved by the least restrictive means possible.
One important goal for enacting the minimum essential coverage requirement appears to be
aimed at protecting public health. The government’s interest in protecting public health has been
held to outweigh individuals’ religious interests. According to the Supreme Court, “the right to
practice religion freely does not include liberty to expose the community or the child to
communicable disease or the latter to ill health or death.”120 The Court delivered this decision
before the Court applied a heightened standard of review to religious exercise cases, so it was not
required to address whether the government’s interest was compelling. Nonetheless, the relative
balance struck by the Court between the interests is significant, particularly if a healthcare
proposal includes a requirement for children, but not adults. Health care legislation that requires
117 Gonzales v. O Centro Espirita Beneficente Unaio Do Vegetal, 546 U.S. 418, 435-437 (2006).
118 Under the longstanding legal principle of entrenchment, a legislative enactment cannot bind a future Congress. That
is, Congress cannot entrench a legislative action by providing that it may not be repealed or altered. See Fletcher v.
Peck, 10 U.S. 87, 135 (1810) (Chief Justice Marshall).
119 See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944); Cude v. State, 237 Ark. 927 (1964).
120 Prince, 321 U.S. at 166-67.
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coverage for children may face fewer obstacles in strict scrutiny analysis than legislation
requiring coverage for all individuals in part because of the Court’s specific recognition that
parents’ religious liberty does not trump the welfare of children and in part because of the general
recognition that children’s interests are given heightened protection. In a decision that did apply
heightened constitutional review, the Court held that the government’s interest in tax programs
used to fund health insurance programs for low-income and aging portions of American society
outweighs individuals’ interests in exercising their religion freely.121 The Court held that the
government had a compelling interest in a uniform tax system that provided revenue for such
governmental programs.122 The Court’s treatment of public health as an interest paramount to
individual religious practice could be taken to indicate there would be a compelling interest under
RFRA.
Although protecting public health through insurance programs appears to be a compelling
governmental interest, the nature of the program that promotes public health may be significant to
the analysis. For example, medical programs such as laws that require affirmative participation in
medical procedures (e.g., vaccinations) differ from financial programs such as laws that require
indirect funding of programs aimed at promoting health (e.g., funding for health insurance
programs). Because of the varied nature of the burden on religion under these two types of
programs, the specific requirements of the legislation impact the determination of
constitutionality. In the case of PPACA, the minimum essential coverage requirement is enforced
through financial programs and penalties, meaning that the enacted legislation is more likely to
avoid constitutional problems than a mandate for affirmative participation in medical programs.
Depending on what is deemed to constitute public health, a court may find that requiring
individuals to obtain health insurance does not rise to the same level of governmental interest as
requirements that directly prevent the spread of disease. On one hand, it may be argued that
health insurance coverage promotes productivity in society. Insurance coverage may encourage
some individuals to seek medical treatment that they otherwise might forgo if they had to pay the
full cost. By seeking treatment, these individuals may have prevented the spread of disease or
may have improved their personal health to be more productive members of society. On the other
hand, it may be argued that insurance coverage does not promote health because individuals are
not guaranteed treatment. The minimum essential coverage requirement does not require
individuals to seek or accept treatment, and thus the effectiveness in promoting public health may
be questioned.
Even if the government has a compelling interest in requiring individual health insurance, it must
use the least restrictive means to achieve that interest in order for the requirement to be upheld as
constitutional. That is, the government must make the burden on religious exercise as narrow as
possible. This test may be met by providing alternative means of compliance with the legislation,
such as the exemption provided in PPACA. Allowing individuals who object to the program on
religious grounds and would not receive benefits from the program to opt out of coverage would
satisfy both the individual’s free exercise of religion and the government’s interest in protecting
public health at large.
121 Lee, 455 U.S. at 260-61.
122 Id.
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Does the Constitution Allow a Religious Exemption for the Minimum
Essential Coverage Requirement?
Even though an exemption may not be required by the Constitution, PPACA’s exemption for
those with religious objections provides an alternative for certain people based on their religious
beliefs that is not available to other people who do not share the same religious beliefs. Thus,
some individuals may claim that the religious exemption would violate the Establishment Clause
(by providing a benefit to groups based on religion) and the equal protection portion of the Fifth
Amendment (by providing for disparate treatment of separate groups).
The Establishment Clause prohibits preferential treatment of one religion over another or
preferential treatment of religion generally over nonreligion.123 Providing an exemption based on
religion may be construed as favoring a particular religion or religion generally because only
individuals with a religious affiliation would be eligible for the exemption. However, the mere
fact that a law addresses religion does not automatically make that law unconstitutional.
Traditionally, to be constitutional under Establishment Clause analysis, a government action must
meet a three-part test known as the Lemon test. To meet the Lemon test, a law must (1) have a
secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) not
lead to excessive entanglement with religion.124 The Supreme Court has upheld religious
exemptions for government programs where the exemptions were enacted to prevent government
interference with religious exercise.125
Exemptions that are specifically available only to certain religions have been construed in some
cases as a violation of the Establishment Clause.126 The religious conscience exemption in
PPACA does not state specific religious groups that would qualify for exemption. Rather PPACA
exempts any individual who has been certified to be “a member of a recognized religious sect or
division thereof described in section 1402(g)(1) [of the Internal Revenue Code of 1986] and an
adherent of established tenets or teaching of such sect or division as described in such section.”
Section 1402(g)(1) provides an exemption from self-employment income tax if the individual
seeking exemption
is a member of a recognized religious sect or division thereof and is an adherent of
established tenets or teachings of such sect or division by reason of which he is
conscientiously opposed to acceptance of the benefits of any private or public insurance
which makes payments in the event of death, disability, old-age, or retirement or makes
payments toward the cost of, or provides services for, medical care.... 127
123 Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968).
124 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). While the first two prongs of the test are self-explanatory, the
third prong prohibits “an intimate and continuing relationship” between government and religion as the result of the
law. Id. at 621-22. The continuing viability of Lemon has been unclear as the Court has raised questions regarding its
adequacy in analyzing these issues. See, e.g., County of Allegheny v. American Civil Liberties Union, 492 U.S. 573
(1989).
125 In Locke v. Davey, the Court recognized that some government actions that allow free exercise consequently raise
questions of establishment, noting that there was room for “play in the joints” in this intersection of the religion
clauses. 540 U.S. 712 (2004).
126 See Sherr v. Northport-East Northport Union Free School District, 672 F. Supp. 81, 89-90 (E.D.N.Y. 1987).
127 26 U.S.C. § 1402(g)(1).
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Thus, the exemption is general, such that any member of any religious organization with the
beliefs described in the provision would qualify. This construction of the exemption appears to
conform with the constitutional requirements of the First Amendment. The Supreme Court has
held that legislation that provides protection or exemption for a specific religious group violates
the Establishment Clause of the First Amendment, which forbids preferential treatment based on
religion.128 The Court has held on numerous occasions that the government cannot provide special
treatment to one religion over another, or religion generally over non-religion.129 However,
challenges have been made even to generally available religious exemptions under the
Establishment Clause because such exemptions would provide preferential treatment to
individuals with religious beliefs, but not to individuals who might object on nonreligious
philosophical grounds to claim the exemption.130 Thus, the question of the constitutionality of
exemptions based on religion appears not to be settled as of yet.
The concerns of preferential treatment for certain groups of individuals that lead to Establishment
Clause questions also raise questions under the equal protection principles of the Fifth
Amendment. Equal protection prevents the government from treating some groups of individuals
differently from other groups of individuals. If the disparate treatment results from a “suspect
classification,” equal protection principles may be violated. Typically, courts have recognized
groups identified by race, national origin, or alienage as suspect classifications. In the context of
religious exemptions, the group being treated differently is a group that might be based on
religious affiliation or might be based on nonreligion. Courts often decide cases alleging disparate
treatment involving religion under the First Amendment, rather than equal protection. Thus, equal
protection jurisprudence does not appear to have addressed religious discrimination to a
significant extent. Courts have generally held that laws that treat groups of individuals differently
because of some animus would be suspect classifications that would be subject to strict scrutiny.
Thus, it appears that the analysis under the equal protection principles likely would not produce a
different outcome from the analysis that would be used under the First Amendment.
Legal Challenges to the Minimum Essential
Coverage Requirement
Several lawsuits have been filed challenging the constitutionality of the minimum essential
coverage requirement. While these lawsuits are not identical in their complaints, they typically
assert that the federal government does not have the authority to impose on individuals a
requirement to purchase health insurance, and therefore seek declarative and injunctive relief. The
Administration has filed motions to dismiss in these cases, arguing that the lawsuits are barred
because, among other things, the plaintiffs lack standing to challenge the minimum essential
coverage requirement, and that the issues asserted are not ripe for adjudication because the
128 U.S. CONST. amend I. See Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994) (invalidating the
creation of a school district for one particular religious group). The Court has looked at whether the religious group
alleged to be favored by the act in violation of the Establishment Clause is one of many religious groups eligible for
similar treatment or if the special treatment is made through a series of benefits offered separately to multiple groups.
Id. at 703-704.
129 See Wallace v. Jaffree, 472 U.S. 38, 52-54 (1985); Epperson v. Arkansas, 393 U.S. 97, 104 (1968); School Dist. of
Abington Township v. Schempp, 374 U.S. 203, 216-217 (1963).
130 See McCarthy v. Boozman, 212 F.Supp. 2d 945 (W.D. Ark. 2002).
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requirement does not take effect until 2014, and thus no injury to individuals could occur before
then. The Administration has also contended that the requirement is well within Congress’s power
under the Commerce Clause, General Welfare Clause, and the Necessary and Proper Clause.
Plaintiffs’ success in challenging the minimum essential coverage requirement has been mixed.
Florida v. HHS
Among the most publicized of these lawsuits, on the same day that PPACA was signed, attorneys
general in 13 states brought an action in the District Court of the Northern District of Florida
against the Secretaries of Health and Human Services, Treasury, and Labor, seeking declaratory
and injunctive relief from its various requirements, including the minimum essential coverage
requirement.131 Certain individuals, the National Federation of Independent Business, and several
other states later joined this lawsuit, and there are currently 26 state plaintiffs. On January 31,
2011, the district court held in Florida v. HHS that the minimum essential coverage requirement
exceeds the powers of Congress under the Commerce Clause and the Necessary and Proper
Clause.132
In discussing why the requirement to have health insurance was unconstitutional under the
Commerce Clause, the court noted that there were two important questions to evaluate: first,
whether there has to be an activity before Congress is authorized to act under the Commerce
Clause, and second, whether the minimum essential coverage requirement is such an activity. In
examining the first question, the court noted that historically there has always been some type of
activity to consider in evaluating regulation under the Clause (e.g., growing and consuming
marijuana). The court opined that based on existing Commerce Clause precedent, it would be “a
radical departure from existing case law to hold that Congress can regulate inactivity under the
Commerce Clause.”133
With respect to the second question, the court evaluated whether a failure to have health
insurance is an activity that may be regulated by Congress. The Administration argued that the
minimum essential coverage requirement regulates activity because the provision of health care is
unique; individuals are susceptible to illness and injury, and they cannot opt out of the market.
However, the court found this argument to be unconvincing.134 The Administration also argued
that the minimum essential coverage requirement regulates an “economic decision” about
whether to purchase health insurance or pay for medical care out-of-pocket.135 But the court
explained that the problem with this rationale is that it would be unlimited in its application, as
virtually all decisions have some sort of economic impact. Finding these arguments to be
unpersuasive, the court agreed with the plaintiffs that the minimum essential coverage
requirement is a regulation of inactivity.136
131 Florida v. Department of Health and Human Services, Case No.: 3:10-cv-91-RV/EMT (N.D. Fla., amended
complaint filed May 14, 2010), available at http://healthreformgps.org/wp-content/uploads/Fla-v.-Sebelius.pdf.
132 Florida v. Department of Health and Human Services, Case No.: 3:10-cv-91-RV/EMT (N.D. Fla., Jan. 31, 2011).
133 Id. at 42.
134 As the court described, there are lots of markets, such as the food market, that individuals cannot opt out of. Id. at
46.
135 Id. at 52.
136 While not addressed in this report, it should be noted that the court also found the minimum essential coverage
requirement to be unconstitutional under the Necessary and Proper Clause. The court explained that the issue is not a
separate inquiry, as the clause functions to augment Congress’s enumerated powers, e.g., the Commerce Clause. As the
(continued...)
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In evaluating whether the rest of PPACA remained valid, the court explained that if a “statute is
viewed as a carefully-balanced and clockwork-like statutory arrangement comprised of pieces
that all work toward one primary legislative goal, and if that goal would be undermined if a
central part of the legislation is found to be unconstitutional, then severability is not
appropriate.”137 The court found the record to indicate that Congress would not have passed
PPACA without the minimum essential coverage requirement, and that it was “indisputably
essential” to the health reform effort.138 Accordingly, the court struck down the health reform law
in its entirety. However, the judge declined to issue an injunction to enjoin implementation of
PPACA.
Virginia ex rel. Cuccinelli v. Sebelius
Similarly, on the same day that PPACA was signed, the Commonwealth of Virginia challenged
the minimum essential coverage requirement on the basis that Congress lacks authority to require
individuals to purchase insurance. Virginia ex rel. Cuccinelli v. Sebelius139 was brought in
conjunction with the Virginia Health Care Freedom Act, a law stating that Virginia residents
cannot be required to obtain or maintain a policy of health insurance coverage, except as required
by a court or a state agency.140 Virginia also alleged that Congress did not have the authority to
enact the minimum essential coverage requirement under, among other things, its power to
regulate interstate commerce and its taxing power.
On December 13, 2010, the court ruled that the minimum essential coverage requirement is
unconstitutional because it exceeds the boundaries of Congress’s authority under the Commerce
Clause.141 The court explained that in order for a statute to survive a constitutional challenge
under the Commerce Clause, it must, among other things, involve a self-initiated activity.
Requiring the advance purchase of insurance based on a future need for health care services, the
court found, is not an activity supported by Commerce Clause jurisprudence.142 The court also
held that the General Welfare Clause does not provide authority for Congress to enact the
minimum essential coverage requirement, as it most closely resembles a penalty as opposed to a
tax. Although it found the minimum essential coverage requirement unconstitutional, unlike the
Florida decision, the court did not strike down the entire statute. Instead, it severed the minimum
essential coverage requirement and “directly-dependent provisions which make reference” to the
section from the rest of the Act.143 In addition, given that the court found no likelihood of
(...continued)
court found, because the minimum essential coverage requirement falls outside of Congress’s Commerce Clause
powers, the authority for it could not come from Necessary and Proper Clause.
137 Id. at 65.
138 Id. at 66-67. Evidence of this, the court explained, was a lack of a severability clause providing that the rest of the
statute should remain intact if any particular provision is found to be unconstitutional. As the court noted, earlier
versions of health reform legislation contained such a clause, but it was not included in the final version of PPACA.
Florida v. HHS, Case No.: 3:10-cv-91-RV/EMT, slip op. at 67.
139 Virginia ex rel. Cuccinelli v. Sebelius, No. 3:10cv188-HEH (E.D. Va., filed Dec. 13, 2010).
140 See Va. Code Ann. § 38.2-3430.1:1 (2010), available at http://leg1.state.va.us/cgi-bin/legp504.exe?
101+ful+HB10ER2+pdf.
141 The court mentioned in a footnote that it did not need to address the argument advanced by the Commonwealth that
the minimum essential coverage requirement conflicts with the application of the Virginia Health Care Freedom Act.
See Virginia ex rel. Cuccinelli v. Sebelius, No. 3:10cv188-HEH, slip op. at 9, fn. 4.
142 Id. at 23.
143 Id. at 40. When one section of a law is held unconstitutional, courts are faced with determining whether the
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irreparable harm pending appellate review, it denied the Commonwealth’s request for injunctive
relief, thus allowing implementation of the remainder of PPACA to move forward.
Thomas More Law Center v. Obama and Liberty University v. Geithner
In contrast to the Florida and Virginia cases, other plaintiffs have not been as successful in
challenging the minimum essential coverage requirement. Some district courts have dismissed
plaintiffs’ claims for procedural reasons such as lack of standing to bring the action,144 and two
have dismissed challenges on the basis that the requirement is constitutional under the Commerce
Clause. In Thomas More Law Center v. Obama,145 the court found that the federal requirement to
purchase health insurance, “which addresses economic decisions regarding health care services
that everyone eventually, and inevitably, will need, is a reasonable means of effectuating
Congress’s goal.”146 The court also found that it is essential to the larger regulatory scheme of
PPACA. As the court explained, given that PPACA compels insurers to provide policies to any
individuals who apply for them, the requirement to purchase health insurance is necessary in
order assure that individuals do not wait until they need care to purchase insurance, as this would
be detrimental to the insurance market. In Liberty University v. Geithner,147 the U.S. District
Court for the Western District of Virginia employed similar reasoning in dismissing a lawsuit
brought by a private Christian university and others. Because these courts found the minimum
essential coverage requirement constitutional under the Commerce Clause, they did not evaluate
whether it would also have been justifiable under the taxing power.148 Both of these cases have
been appealed to the circuit courts.
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remainder of the statute remains valid, or whether the whole statute or act is nullified. As noted by the Supreme Court,
“Unless it is evident that the Legislature would not have enacted those provisions which are within its power,
independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Alaska
Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)). For a discussion
of the issue of severability, see CRS Report 97-589, Statutory Interpretation: General Principles and Recent Trends,
by Larry M. Eig.
144 See, e.g., New Jersey Physicians, Inc. v. Obama, No. 10-1489 (NJ, filed Dec. 8, 2010); Baldwin v. Sebelius, No. 10-
1033, (S.D. Cal., filed 8/27/10).
145 Thomas More Law Ctr. v. Obama, 2010 U.S. Dist. LEXIS 107416 (Oct. 7, 2010).
146 Id. at 29.
147 Liberty Univ., Inc. v. Geithner, 2010 U.S. Dist. LEXIS 125922 (Nov. 30, 2010).
148 It should be noted, however, that courts finding the minimum essential coverage requirement to be constitutional on
Commerce Clause grounds have expressed some doubts as to whether the requirement could be valid under Congress’s
taxing power. As stated in Liberty University, “[a]lthough the penalties collected under [PPACA] are expected to raise
revenue, their main purpose is to enforce the requirement that individuals and employers purchase or provide health
insurance. Therefore, the penalty provisions, as ‘mere incidents of the regulation of commerce,’ … are not considered
taxes for the purpose of the present claim.” Liberty Univ., Inc. v. Geithner, 2010 U.S. Dist. LEXIS 125922 at 93. See
also Thomas More Law Ctr., 2010 U.S. Dist. LEXIS 107416, at 29-31.
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Author Contact Information
Jennifer Staman
Erika K. Lunder
Legislative Attorney
Legislative Attorney
jstaman@crs.loc.gov, 7-2610
elunder@crs.loc.gov, 7-4538
Cynthia Brougher
Kenneth R. Thomas
Legislative Attorney
Legislative Attorney
cbrougher@crs.loc.gov, 7-9121
kthomas@crs.loc.gov, 7-5006
Edward C. Liu
Legislative Attorney
eliu@crs.loc.gov, 7-9166
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