April 19, 2010

Why the health care legislation's individual mandate is unconstitutional

By Why the health care legislation's individual mandate is unconstitutional

Author: Luke A. Wake

The Patient Protection and Affordable Care Act (PPACA) has a provision requiring every American to buy and retain health insurance. This provision is flat-out unconstitutional. Congress has no power to require Americans to purchase anything.

The federal government does not have unlimited powers. On the contrary, the powers of the federal government are "few and defined." Those are the words of James Madison, the man who wrote the Constitution.

Following the Revolution, the Founding Fathers debated over what form of government they should have. Having just fought a revolution against a tyrannical government in order to secure their liberties and natural rights, the Founders were fearful of placing too much power in the hands of a centralized government. Accordingly, they were hesitant to create a federal government, and ratified the Constitution only after a long debate between the federalists and the anti-federalists.

The anti-federalists were opposed to the creation of a federal government, because they believed such a government would become too big, too powerful and would entangle itself in every aspect of our lives. The Constitution was only ratified once these concerns were quelled by James Madison’s assurance that the powers of the federal government would be few and limited. Indeed, in the Federalist Papers, Madison explained that the Constitution was designed to control the hand of the federal government, and to ensure that it would never become despotic.

As such, the Constitution enumerates the powers of the federal government. The government has no powers but those specifically listed. So, it is a fair question to ask: What part of the Constitution authorizes Congress to require Americans to purchase health insurance?

When asked that question, Speaker Nancy Pelosi replied, "are you serious?" – Well, yes that is a serious question, and a question Pacific Legal Foundation will be raising in court. The only Clause which may arguably authorize the mandate to purchase health insurance is the Commerce Clause; however, the Commerce Clause only authorizes regulation of "interstate commerce," not the compulsion of commercial activities.

Originally understood, the Commerce Clause was only meant to authorize regulation of goods and services crossing state lines; however, after years of progressive (i.e. liberal) court decisions, the Commerce Clause has been stretched nearly to the breaking point. Under existing jurisprudence, the power to regulate interstate commerce has been expanded so drastically that the Commerce Clause hardly operates as a limitation on federal power at all. Today, almost any act can be regulated under the Commerce Clause, so long as the act has some conceivable impact on interstate commerce.

Nonetheless, the Supreme Court has held that the connection between a regulated action and interstate commerce may not be too attenuated. In United States v. Lopez and United States v. Morrison, the Court explained the connection cannot be based upon stacked inferences, otherwise Congress could regulate anything and everything. The Court explained that the Commerce Clause has always been understood to entail "a limiting principle," which means that the court cannot interpret the clause in such a way as to give the federal government cart-blanche power to regulate every aspect of our lives. But now Congress is trying to throw the limiting principle out the window.

If the Court accepts the federal government’s argument that it can compel us to engage in commerce, then there is nothing beyond its reach. Under existing jurisprudence our actions could already be regulated, but we have always retained a sphere of liberty in the autonomous right to refuse to engage in economic activities. Yet, in claiming the power to force us to purchase goods and services, Congress has ignored the warnings of our Founding Fathers who cried, "Don’t tread on me!"

For the first time, Congress has sought to force us to engage in economic activities. If upheld, this would set a dangerous precedent, which would allow for fusion of private and government functions. The government will not only be able to regulate our actions, but will be able to compel us to act in the first place. We might be required to purchase new cars, or new computers to "boost the economy," or we might be required to purchase stock in corporations in industries deemed "vital to the American economy." If the individual mandate provision is upheld, we will no longer have any true liberty, for nothing would be beyond the purview of the federal government.

Still, advocates of the PPACA believe that Congress can require us to purchase health insurance because our decision not to buy health care affects the economy. But, there is a logical incoherence in saying that the power to regulate the field of commerce entails the power to force people to engage in commerce. The power to regulate the field of commerce cannot logically be understood as the power to regulate people standing outside of that field.

Bear in mind that the federal government has only those powers specifically enumerated in the Constitution, and that the Founding Fathers wanted to limit the powers of the federal government. Therefore the Commerce Clause should be understood to confine the power of the government to regulation of the field of commerce and nothing more. Thus, so long as a person stands outside the field of commerce, they stand beyond the purview of the federal commerce power. As such, an individual who does not wish to engage in an economic activity cannot be forced to do so under the commerce power.

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