Universal Health Care—The Supreme Court Also Has a Say

PUBLISHED August 10, 2026

Like it or not, any universal health care plan must pass muster with the Supreme Court. Would All-American Care?

At the heart of All-American Care is an individual mandate. All legal residents 18 and older must purchase a health insurance policy and pay the monthly premiums.

In the Netherlands, if a person does not insure themselves, local officials track them down, fine them €529, and if they are still unwilling to cooperate, take out an insurance policy for them and have the premium payments deducted from their paycheck. Close to 100% of Dutch residents have health insurance coverage.

We could do something similar in the United States.

Community Rating

The measures may seem harsh, but a mandate is important because with one, insurance companies can offer community rating, meaning that all covered individuals pay the same price for their premiums. A mandate helps to lower average insurance costs by having healthy individuals (usually the young) subsidize the unhealthy.

According to the American Academy of Actuaries, when there is a voluntary market, one without a mandate, people in poor health are more likely to sign up for insurance coverage that offers a community rating than those in good health. A mandate helps to ensure adequate enrollment, generates stable, predictable claims for insurance companies and provides a balanced risk pool.

In 2010 Congress passed the Affordable Care Act requiring that all individuals and their dependents be covered with “minimum essential coverage”—in essence, a mandate. If an individual chose not to purchase insurance, they would have to pay a “penalty” to the IRS. Twenty-six states and several individuals sued the federal government, alleging that imposing a mandate on the American people exceeded congressional power (see National Federation of Independent Business v. Sebelius).

Court Ruling

The Supreme Court agreed and said that under the Commerce Clause, which gives Congress the power to regulate interstate commerce, that the federal government could not force an uninsured individual to buy an insurance policy. The power to regulate, said the Court, assumed that there was already something to be regulated.

The Court went further and said that the Necessary and Proper Clause, which Alexander Hamilton said in Federalist No. 34 could provide “for future contingencies as they may happen,” was not a valid policy tool in this instance. Chief Justice Roberts wrote that even if a mandate was necessary to have a national health insurance plan, it would not be proper. But the opinion does not clearly define what makes a law “proper.”

The Supreme Court did say, however, that Congress could use its power to tax. The Court noted that Congress used the word “penalty” and not “tax,” but in essence, the penalty was a tax. It was not punitive, and if a person did not want to purchase health insurance, then he or she had to pay a fine to the IRS. The government, said the Court, had a history of taxing people to influence behavior, e.g., cigarette taxes.

In the Court’s mind, once a person decided not to buy health insurance and pay the tax, that was it. The U.S. government could not then go out and purchase a policy for that individual and have their employer withhold insurance premiums from their salary.

Without a legal mandate, the United States will never be able to have affordable community-rated premiums—the bedrock of a viable universal health care plan.

The Supreme Court agreed and said that under the Commerce Clause, which gives Congress the power to regulate interstate commerce, that the federal government could not force an uninsured individual to buy an insurance policy. The power to regulate, said the Court, assumed that there was already something to be regulated.

The Court went further and said that the Necessary and Proper Clause, which Alexander Hamilton said in Federalist No. 34 could provide “for future contingencies as they may happen,” was not a valid policy tool in this instance. Chief Justice Roberts wrote that even if a mandate was necessary to have a national health insurance plan, it would not be proper. But the opinion does not clearly define what makes a law “proper.”

The Supreme Court did say, however, that Congress could use its power to tax. The Court noted that Congress used the word “penalty” and not “tax,” but in essence, the penalty was a tax. It was not punitive, and if a person did not want to purchase health insurance, then he or she had to pay a fine to the IRS. The government, said the Court, had a history of taxing people to influence behavior, e.g., cigarette taxes.

In the Court’s mind, once a person decided not to buy health insurance and pay the tax, that was it. The U.S. government could not then go out and purchase a policy for that individual and have their employer withhold insurance premiums from their salary.

Without a legal mandate, the United States will never be able to have affordable community-rated premiums—the bedrock of a viable universal health care plan.

An Amendment

If the United States wants a universal health care plan, one that will provide affordable coverage for all Americans and at the same time, control government spending, then we need to pass an amendment which gives the federal government the power to create such a plan from the ground up.

Amendments, though, have a bad rap in our country. They take too long, say critics, and our nation is polarized. Consider then that of the last 11 amendments ratified in our country since 1900, most came into force within a year or two after they were proposed.

Consider also that 38 states must ratify an amendment, and that 40 states have already agreed to expand Medicaid under the Affordable Care Act. Additionally, a recent poll found that only one-half of all Americans could afford their health care last year and had access to quality care. As medical costs rise and more people get booted off Medicaid, the number who cannot afford their health care is bound to rise.

Two-thirds of both the House and Senate may just be ready to propose an amendment.

We can call it “The All-American Care Amendment.”

Note: This is an ongoing series of blogs to develop an affordable, universal health care plan before the 2028 presidential election.

Selected References

American Academy of Actuaries. (2025, July). Strategies to achieve market stability in the individual health insurance market (Discussion Brief). American Academy of Actuaries. https://actuary.org/wp-content/uploads/2025/07/Brief-Market-Stability.pdf

Centraal Administratie Kantoor (CAK). (n.d.). I received a fine. CAK. Retrieved June 15, 2026, from https://hetcak.nl/en/uninsured/received-fine/

Commonwealth Fund. International Health Care System Profiles: Netherlands. May 2026. https://doi.org/10.26099/CRPY-MJ09. 

Hamilton, A. (1788/2008). Federalist No. 34: Concerning the general power of taxation. In The Avalon Project. Yale Law School. https://avalon.law.yale.edu/18th_century/fed34.asp

Jeurissen, Patrick, and Hans Maarse. “Chapter 3: Health Insurance Reform in Practice.” In The Market Reform in Dutch Health Care: Results, Lessons and Prospects. Copenhagen: European Observatory on Health Systems and Policies, 2021.

KFF Health News. (2026, June 18). Morning briefing: Americans’ angst over healthcare costs grows, with almost half saying they can’t afford it, survey finds. KFF Health News. https://kffhealthnews.org/morning-breakout/healthcare-costs-061826/

KFF. (2026, May 21). Status of state Medicaid expansion decisions. KFF. https://www.kff.org/medicaid/status-of-state-medicaid-expansion-decisions/

National Archives. (n.d.). The Constitution: Amendments 11–27. U.S. National Archives and Records Administration. https://www.archives.gov/founding-docs/amendments-11-27

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). Retrieved from Cornell Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/11-393

United States Code. (n.d.). 26 U.S.C. § 5000A: Requirement to maintain minimum essential coverage. Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/uscode/text/26/5000A