President ObamaвЂ™s unconstitutional $2.6 trillion health care law will mandate that all Americans have вЂњminimum essentialвЂќ health coverage starting in 2014.В President Obama wants this individual mandate to sound like a reasonable regulation.В The fact is, however, the arguments for this mandate are arguments for federal power without any limits, and totally at odds with the U.S. Constitution, which limits the regulatory authority of the federal government in order to protect personal liberty.В This is the first time that Congress has ever directly required individuals to purchase a particular product from a private company.
The Mandate Would Allow Congress to Regulate Mental Activity
To be constitutional, the individual mandate must be a valid exercise of CongressвЂ™ power to regulate interstate commerce.В Since the 1930s, the Supreme Court has found that вЂњactivities that substantially affect interstate commerceвЂќ are proper subjects for federal regulation.В Yet the individual mandate would regulateВ decisions rather thanВ activities.В It would regulate an individualвЂ™s decision not to engage in economic activity by purchasing health insurance.В Upholding the unprecedented attempt to regulate decisions not to engage in interstate commerce, Judge Gladys Kessler of the U.S. District Court for the District of Columbia, upholding the constitutionality of the health law, wrote that the distinction between the regulation of physical activity and mental activity is oneВ вЂњof little significance.вЂќ
The Congressional Research ServiceВ (CRS) determined that this вЂњis a novel issueвЂќ: whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity.вЂќВ Ultimately, CRS concluded, вЂњit may seem like too much of a bootstrap to force individuals into the health insurance market and then use their participation in that market to say they are engaging in commerce.вЂќ
The Mandate Eliminates Virtually All Restrictions on Federal Power
Harvard law professor Charles Fried acknowledged that the administrationвЂ™s argument for the constitutionality of the mandateВ would allow Congress to pass a law requiring individuals to purchase healthy foods, like broccoli, in the name of lowering national health expenditures.
Even as it upheld the constitutionality of the mandate, the United States Court of Appeals for the D.C. Circuit stated thatВ the Government вЂњconcedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.вЂќ
The Mandate Is Not a Tax
The GovernmentвЂ™s lawyers also argue that the individual mandate is a proper exercise of CongressвЂ™ power to tax.В Unfortunately, the statute refers to the mandate as a вЂњpenaltyвЂќ or вЂњpenalty feeвЂќ nearly two dozen times, and never as a tax.В Moreover, theВ Secretary of Health and Human Services, theВ Acting Director of the Office of Management and Budget, andPresident Obama himself, have denied that the individual mandate is a tax.
Every court that has addressed the GovernmentвЂ™s argument that the individual mandate is a legitimate exercise of CongressвЂ™ power to tax has rejected it.