The "individual mandate" provision of the health care reform bill - now a law - requires that by 2014 all but a very few Americans either have health insurance or pay an additional annual tax. Several states, organizations and individuals are lining up to file lawsuits challenging the constitutionality of this requirement. The basis of their suits will be the question, "Can the U.S. government force people to buy something they may not want?" While the answer may appear obvious, the question and the lawsuits based on it will ultimately be answered by the Supreme Court.

How will the government defend the constitutionality of the health insurance public mandate?

What is the Individual Mandate?
By 2014 all Americans except for the few exempted under the law will be required to have government-approved health insurance - either through their employer, a government program or privately purchased. Those who choose not to secure health insurance will be assessed an income tax penalty of from $750 per year up to $2,500 per family. The health care reform bill provides that failure to have health insurance will not result in criminal prosecution.

Tax credits will be available to help middle-class families with incomes up to $88,000 per year pay for health insurance. Government subsidies will help low-income persons and Medicare will be expanded to cover very-low income people, regardless of their age.

Defending the Individual Mandate's Constitutionality
Suites challenging the individual mandate will probably argue that it violates the 10th Amendment, which states that the federal government has no powers beyond those specifically granted to it by the Constitution.

The Constitution, they will argue, does not grant the federal government the power to force the people to purchase any product or service.

The government's defense of the individual mandate will likely be based on the first clause in Article I, Section 8 of the Constitution -- the Tax and Spending Clause -- and on Article I, Section 8, clause 3 -- the Commerce Clause.

The Tax and Spending Clause
Article I, Section 8, clause 1 of the Constitution gives Congress the "Power To lay and collect Taxes…" As fashioned in the health care reform law, the public mandate functions as a tax on people who choose not to have health insurance. The law does not force them to buy health insurance. As long as they continue to pay the tax, they may remain uninsured. A main goal of health care reform is to help government offset the cost of medical treatment provided to the uninsured. Since taxation is the only way the Constitution allows the government to raise money, Congress had three choices: tax everybody, create government-run public insurance plan or tax only those who choose to remain uninsured.

The Commerce Clause
Article I, Section 8, clause 3 of the Constitution gives Congress the power to "regulate Commerce with foreign Nations, and among the several States…" The individual mandate requires individuals to buy a product - health insurance - thus placing it under Congress' power to regulate commerce. While the Commerce Clause more specifically addresses inter-state sale of goods, the Supreme Court has rarely struck down federal laws for exceeding its authority. Most recently, for example, the Supreme Court upheld a federal law banning the sale and possession of medical marijuana, even in states that allow it.

The Question Before the Court
The question the Supreme Court will ultimately have to decide is:

• Does levying a tax on people for not buying health insurance - essentially a tax on doing nothing - exceed Congress' constitutional authority under the Tax and Spending and Commerce Clause, or do the Tax and Spending and Commerce Clauses trump the 10th Amendment?
  

The Outcome?
Most court observers, including Orin Kerr and Jonathan H. Adler at the conservative Volokh Conspiracy Blog agree that if it even decides to hear the case, the Supreme Court would ultimately find the individual mandate to be constitutional. "I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate," writes Kerr, an opponent of the mandate.

However, the individual mandate is clearly the most unpopular provision in the entire health care reform law. The extent of the public's opposition to the individual mandate would offer the Justices "political cover" should they decide to strike it down.