One very controversial aspect of HR3200, the Obamacare legislation currently being debated in House committee, is a mandate on buying insurance, either the government option or private insurance. With the mandate comes the imposition of taxes on employers or individuals who do not follow the requirement of purchasing health insurance, whether they want to or not. No shock here, but it it seems that explicitly based on precedent, this provision is highly unconstitutional as nowhere in congress’ enumerate powers is this even remotely granted as something congress can legally be undertaking.
David B. Rivkin Jr. and Lee A. Casey explain in this WaPo editorial:
President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals. Consider one element known as the “individual mandate,” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?
In short, no. The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.
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.
The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.
This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a “benefit” that some part of the population would not choose to eschew.
The other obvious alternative is to use Congress’s power to tax and spend. In an effort, perhaps, to anchor this mandate in that power, the Senate version of the individual mandate envisions that failure to comply would be met with a penalty, to be collected by the IRS. This arrangement, however, is not constitutional either.
Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a “tax” to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court’s interpretation of the commerce power’s breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.
Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous — and therefore unlikely — scenario, advocates of universal health coverage must accept that Congress’s power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.
Arguments presented, such as these, are not drawn on political leanings or opinions, they’re drawn on the letter of the law and Supreme Court precedent. Many people, including congress itself, often forget that government power is itself regulated under the constitution based on what the individual federal bodies can and cannot do.
To say that congress and the President forcing every single American to purchase one form of health insurance or another is an overstep of federal power is putting it lightly. The concept of mandated health insurance makes the Stamp Act of of 1765 look like nothing, putting it in today’s context, and yet that launched the beginnings of a revolution.
Hot Air comments further:
Most states now require drivers to have auto insurance before issuing drivers licenses, car registrations, or both. However, that doesn’t apply here for three reasons. First, that power rests with the individual states, as they are the licensing authorities and not the federal government. Second, driving is not a right but a privilege, which gives access to state-owned roads in exchange for a demonstration of competence and appropriate safety and insurance preparation, so the state can and does set conditions on that privilege (too many, but that’s an argument for another day). Third, because the insurance is conditioned on that privilege, it only affects a portion of the populace. The states could not demand universal auto insurance on every man, woman, and child in their state.
But how about using the tax code to enforce the mandate? Congress has the power to tax, as we know all too well, and they can create some severe penalties for failure to comply. In fact, HR3200 does just that now.
Finally, I’ll close with this Marine Corp Veteran giving U.S. Congressman Brian Baird a tongue lashing for his Obamacare support:
Amen to that.
How did we allow the federal government to become so power-hungry and arrogant in believing they do not have to be held accountable to the United States Constitution?