Does the Congress have the right to compell commerce under threat of penalty? (Jail and Fine)?
Yup.
Is it Unconstitutional to Mandate Health Insurance? : HEALTH REFORM WATCH
Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the Bill of Rights. Considering (1), Congress has ample power and precedent through the Constitutions Commerce Clause to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as regulating its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.
O’Neill Institute » Legal Solutions in Health Reform » The Constitutionality of Mandates to Purchase Health Insurance
http://www.law.georgetown.edu/oneil...ive_Summaries/Individual_Mandates_ExecSum.pdf
http://www.law.georgetown.edu/oneillinstitute/projects/reform/Papers/Individual_Mandates.pdf
It is manifest that health insurance deals with economic transactions and substantially affects interstate commerce. Although much of health care delivery is local, most medical supplies, drugs and equipment are shipped in interstate commerce. Accordingly, the antitrust laws, for instance, have been applied repeatedly to local hospital and physician activities.
In Hospital Bldg. Co. v. Rex Hospital Trustees,12 the Court held that allegations of the combination of factors just noted is certainly sufficient to establish a substantial effect on interstate commerce under the Sherman Antitrust Act. Even more directly relevant is that most health insurance is sold through interstate companies. All of the largest insurers in the country operate on a multi-state basis.
Although in many states the largest insurer is a locally owned and operated Blue Cross/Blue Shield plan, these Blues plans contract with each other to accept Blues subscribers from any state into their provider networks. Regardless of how insurance is sold, it is well-established that matters relating to insurance substantially affect interstate commerce.13 In 1945, the Court (overruling its earlier precedent) ruled that insurance was interstate commerce subject to federal regulation.14 In response, Congress enacted the McCarran-Ferguson Act15
Rather than a direct mandate enforced by civil fines, Congress might instead impose a tax on people who do not have health insurance, as Massachusetts has done, or provide a tax credit or other benefit for those who do have health insurance. Structured this way, the mandate would not be a direct regulation; instead, it would impose indirect regulatory effects from a specially crafted tax law. This alternative to a mandate is frequently distinguished as a play or pay option: either employers or individuals play by purchasing insurance, or they pay a tax.
Another to declare that federal regulation of insurance is not to be inferred or assumed unless federal laws do so explicitly. Mandating health insurance directly affects interstate commerce in several ways. Covering more people is expected to reduce the price of insurance by addressing free-rider and adverse selection problems. Free riding includes relying on emergency care and other services without paying for all the costs, and forcing providers to shift those costs onto people with insurance.
Adverse selection is the tendency to wait to purchase until a person expects to need health care, thereby keeping out of the insurance pool a full cross section of both low and higher cost subscribers. Covering more people also could reduce premiums by enhancing economies of scale in pooling of risk and managing medical costs. Thus, absent any special states rights concerns under the 10th Amendment (discussed below), it is clear and well-settled that Congress has the power to mandate the purchase of health insurance.
To be extra safe, in view of Rehnquist-Court decisions (such as Lopez and Morrison) Congress should make an explicit jurisdictional statement with express findings on the substantial effects that an insurance mandate is expected have on or in interstate commerce.
A judge Friday struck down Milwaukee's controversial paid sick day ordinance that mandates that private employers provide paid sick leave, ruling it was invalidly enacted and unconstitutional.
In a 38-page decision, Milwaukee County Circuit Judge Thomas Cooper wrote, "This is a case where the proposed ordinance's reach exceeds its grasp."
The decision will be appealed, said Amy Stear, state director of 9to5 the National Association of Working Women, the group that led the coalition of community organizations that put the measure on the November ballot. It passed with nearly 70% of the vote.
Only two other cities in the country, San Francisco and Washington, D.C., have similar laws.
Judge finds city's sick leave mandate unconstitutional - JSOnline
First of all, all the provisions you posted in Article 1 Sec. 8 as a support mechanism for mandates are a misread at best. First of all, while congress has the power to tax and to regulate interstate commerce including those insurance companies doing business from state to state, the tax is is on the transaction i.e. income. It is not used as a method to compel an individual to purchase a good or service even under the general welfare clause. If this were the case. there would be no need for any other right in the constitution other than the commerce clause according to that read, because it would give congress unlimted power to make laws as it see's fit. Want an example, congress under that intrepretation can mandate though a tax penalty that Americans that do not drive a GM car will pay a tax penalty. That is why taxes are based on INCOME see 16th amendment. One thing further, taxes have to apply equally and if you set out to penalize those that do not have insurance with a tax and not tax those that do have insurance , you have violated the 16th Amendment, and the 14th Amendment.
16th
The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises [ . . . ] but all Duties,
Imposts and Excises shall be uniform throughout the United States
by not being uniform this mandate also violates the equal protection claause in the constitution.
14th
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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
While those that support these mandates may cling to their belief that the commerce clause covers all, or Article 1 Sec. 8 overrides all, in this case it doesn't. So yes is is unconstitutional and will be found a such..
Although the Supreme Court has interpreted Congress's commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress's reach.
David B. Rivkin Jr. and Lee A. Casey - Constitutionality of Health Insurance Mandate Questioned - washingtonpost.com
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