These challenges have reached the Supreme Court, where oral arguments in the cases took place during the last week of March, 2012. This report first analyzes the authority of Congress to enact the minimum coverage provision contained in ACA and discusses whether there must be exceptions to a requirement to purchase health insurance based on First Amendment freedom of religion. It finally examines some of the legal challenges to this federal requirement as well as other questions (relating to the Anti-Injunction Act and severability) that the Supreme Court is considering in conjunction with the minimum coverage provision. For a discussion of the constitutional challenge to ACA's expansion of the Medicaid program, see CRS Report R42367, Federalism Challenge to Medicaid Expansion Under the Affordable Care Act: Florida v. Department of Health and Human Services , by [author name scrubbed]. Constitutional Authority to Require an Individual to Have Health Insurance

While there is no specific enumerated constitutional power to regulate health care or establish a minimum coverage provision, one can look to Congress's other broad enumerated powers which have been used to justify health care regulation in the past. In the instant case, Congress's taxing power or its power to regulate interstate commerce may be pertinent. 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. 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. Under the first factor of the test, it must be determined whether requiring individuals to purchase health insurance is commercial or economic in nature. On the other hand, it is argued that the minimum coverage provision goes beyond the bounds of the Commerce Clause, as regulation of the health insurance industry or the health care system could be considered economic activity, but regulating a choice to purchase health insurance is not. Plaintiffs' success in challenging the minimum coverage provision has been mixed. Certain individuals, the National Federation of Independent Business, and several other states later joined this lawsuit, and there are currently 26 state plaintiffs. Virginia also alleged that Congress did not have the authority to enact the minimum coverage provision under, among other things, its power to regulate interstate commerce and its taxing power. Aside from evaluating the constitutional issues surrounding the requirement to have health insurance, the Court agreed to separately examine whether the Court is barred from evaluating the individual mandate at this time because of the Anti-Injunction Act, which prohibits lawsuits seeking to restrain the assessment or collection of a tax. The Court also agreed to review the question of whether the individual mandate may be severed from the rest of ACA, assuming the individual mandate is found to be unconstitutional. It is not clear whether the Court might regard these findings as an indicator that Congress regarded the individual mandate as an indispensable part of ACA, as the petitioners argue; as an expression of Congress's view that the individual mandate is inseparable from the guaranteed issue and community rating provisions, as the Administration claims; or conversely, unrelated to the severability question, as a demonstration of Congress's view that the individual mandate plays an essential role in a broader regulatory scheme for purposes of the Commerce Clause, as the amicus contends.
As part of the Patient Protection and Affordable Care Act (ACA), P.L. 111-148, as amended, Congress enacted a "minimum coverage provision," which compels certain individuals to have a minimum level of health insurance (i.e., an "individual mandate"). Individuals who fail to do so may be subject to a monetary penalty, administered through the tax code. Congress has never compelled individuals to buy health insurance, and there has been significant controversy and debate over whether the requirement is within the scope of Congress's legislative powers.
Shortly after ACA was enacted, several lawsuits were filed that challenge the individual mandate on constitutional grounds. While some of these cases have been dismissed for procedural reasons, others have moved forward. These challenges have now reached the Supreme Court. During the last week of March, the Court heard arguments in HHS v. Florida, a case in which attorneys general and governors in 26 states as well as others brought an action against the Administration, seeking to invalidate the individual mandate and other provisions of ACA. Besides evaluating the constitutionality of the individual mandate, the Court is examining the question of whether the Anti-Injunction Act currently prevents the Court from ruling on the merits of the case. It also is considering the extent to which the minimum coverage provision can be severed from the remainder of ACA, if it is found to be unconstitutional. Finally, the Court is analyzing ACA's expansion of the Medicaid program and whether it unconstitutionally "coerces" states into compliance with federal requirements. This last issue will be addressed in CRS Report R42367, Federalism Challenge to Medicaid Expansion Under the Affordable Care Act: Florida v. Department of Health and Human Services, by [author name scrubbed].
While there is no specific enumerated constitutional power to regulate health care or establish a minimum coverage provision, Congress's taxing power or its power to regulate interstate commerce may be pertinent. 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 coverage provision 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 the minimum coverage provision under the Commerce Clause, one of several issues that may be examined is whether the individual mandate is a regulation of economic activity. Some 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. Conversely, others argue that forcing individuals to participate in commerce in order to regulate them goes beyond the bounds of the clause.
This report analyzes certain constitutional issues raised by requiring individuals to purchase health insurance under Congress's authority under its taxing power or its power to regulate interstate commerce. It also addresses whether the exceptions to the minimum coverage provision to purchase health insurance satisfy First Amendment freedom of religion protections. Finally, this report discusses some of the more publicized legal challenges to ACA, as well additional issues that are currently before the Court.