Mandate or Tax, the Federal Health Law is Still Unconstitutional

by Christina Sandefur, Goldwater Institute

Those frustrated with the Supreme Court’s ruling that the federal government can tax Americans who do not purchase government-approved health insurance may find some consolation going forward, because NFIB v. Sebelius will not be the last word on the federal law. Over the next few years, courts across the country will hear a number of legal challenges that share a common theme: even read as a tax, the federal health insurance law is unconstitutional.

Among those lawsuits is Coons v. Geithner, the Goldwater Institute’s defense of the constitutionally-protected right to make one’s own health care decisions.

The federal tax penalty inflicts substantial burdens on this important freedom. By forcing Americans to purchase a government-sanctioned health plan or pay a hefty fine to the IRS, the federal law makes it difficult or impossible for them to visit the doctors and get the treatments they actually want and need. And because it requires people who do not wish to purchase government-sanctioned health insurance to surrender personal medical information or pay a fine, the law intrudes on the right to privacy.

When the federal government threatens individual liberty, the states can use their Tenth Amendment powers to shield their citizens. Arizona and 13 other states have done so by adopting Health Care Freedom Acts, which preserve health care independence by preventing government from coercing participation in a healthcare system. Although the Supreme Court recognized the federal government’s power to tax individuals who do not purchase government-approved health insurance, courts must now decide whether this tax can override a state’s traditional, sovereign authority to protect its citizens’ health care rights.

These critical issues of health care freedom and state sovereignty are awaiting a decision from a federal trial court judge in Phoenix.

Calling the health insurance mandate a tax is not a panacea for the law’s constitutional ills. Tax or not, Congress does not have the power to sidestep state sovereignty in order to trample individual rights.