Constitutional Uncertainty and the Design of Social Insurance: Reflections on the Obamacare Case

Michael J. Graetz, Columbia Law School
Jerry L. Mashaw, Yale Law School


The gravamen of the constitutional complaint against the individual mandate is its supposed intrusion on personal freedom. But, when all was said and done, no one attacked a state government’s requirement that individuals must purchase health insurance, nor advanced any constitutional limitation on the states doing so. All we have is a holding that if the federal government wishes to do the same, it must exercise its powers to tax and spend, not its power to regulate. The ACA case then is best understood as a legal attack on the means but not the goals of the health care legislation.

This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in our 21st Century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen our nation’s social insurance protections. We explain why this is so with regard not only to health insurance, but also unemployment insurance and social security.