American Maggie

When the U.S. House of Representatives passed their healthcare bill last weekend, it included a strong individual mandate that would require that all Americans buy health insurance. And according to Politco.com, the penalty for not complying with the mandate could be a fine as high as $3,800 a year per family.

Proponents of the mandate have offered fairly run of the mill arguments: it will drive down costs, it will prevent Americans from having to shoulder the bill of someone else without insurance (where was this argument when welfare was created?), etc. etc.

Disregarding the fact that this individual mandate is a tax increase, which completely contradicts President Obama’s campaign pledge not to raise taxes, some questions are being raised about its constitutionality.  In a recent conference call with reporters, Sen. Chuck Grassley (R-Iowa) said, “Whether it’s constitutional or not ought to have the most debate.”

Grassley is right to raise this concern, even if others don’t think so. The Washington Post’s Ezra Klein responded by saying “Before we get down this road, yes, the individual mandate is constitutional […] you can look at the individual mandate as a tax, which is constitutional.”

Klein went on to write that Republicans voicing this concern are just “getting a bit desperate.” He also cited examples like the individual mandate in Massachusetts’ healthcare plan (their system may be bankrupt, but at least its constitutionality hasn’t been challenged!) and the fact that numerous Republicans like Lindsey Graham, Lamar Alexander, Norm Coleman, and Bob Corker have all come out in support for a mandate.

But another common argument for the constitutionality of an individual mandate cites the ever-so-popular and commonly misconstrued Interstate Commerce Clause.  According to Wake Forest University law professor Mark Hall, “…a mandate to purchase health insurance appears to fall fairly readily within the current breadth of Congress’ power to regulate interstate commerce.”

And yet another angle was tried recently by House Majority Leader Steny Hoyer when he said the mandate was constitutional because it promotes the general welfare: “The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.”

So is there any weight behind these explanations for the constitutionality for a law that would essentially criminalize any individual who opted not to buy a certain product in the private sector?  In a word: No.

As every American Government 101 class used to teach, the Constitution clearly outlines the powers that are enumerated to the federal government in Article 1, Section 8.  And anything not explicitly enumerated? The 10^th Amendment took care of that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

So does an individual mandate for buying health insurance fall in the category of powers delegated to the United States? If you’re Ezra Klein, it does because well, it’s a tax! But according to the Constitution, an individual mandate cannot be a tax because it is not an excise, capitation, or income tax; the only taxes established in the Constitution.

Clearly, a mandate that fines people for not buying a product does not fall into any of these categories because it’s not a surcharge on a purchase, a fixed amount levied on all individuals, or a charge on one’s income. So while it is indeed a “tax,” it is not one that has been authorized by the Constitution.

That leaves the Commerce Clause argument. In the past, it has been grossly misinterpreted in landmark Supreme Court cases like Wickard v. Filburn and Gonzales v. Raich. In both instances, the Court ruled that the federal government had the power to regulate substances that were neither sold nor bought, but grown on private property for personal use.

With an individual mandate however, the government would be fining people for not buying health insurance; no commercial activity would be taking place. But that is an essential qualifier for the commerce clause. Thus it would be difficult for the most Washington-savvy politician or lawyer to argue otherwise, even with the appalling Supreme Court precedents.

But President Obama and the Democrats in Congress have embraced the individual mandate because they know it is the only way universal healthcare can be funded. Not only that, but with the new regulations that say health insurance companies must provide coverage to those with pre-existing conditions, it would make little sense for people to buy coverage before illness hit; unless of course, they are threatened with a massive fine.

An individual mandate is anything but constitutional; that much could be clear to anyone who studies that great document penned by our Founding Fathers. Furthermore, if said mandate becomes law, what’s to stop the powers in D.C. from “taxing” people who don’t buy organic produce, go to public schools, or drive hybrid vehicles? Any reason given to justify a “tax” on individuals for not purchasing health insurance could just as easily be applied to any number of behaviors. A chilling thought, indeed.

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Amanda Carey is the Editor of The Tiger Town Observer at Clemson University.  She has previously worked for Robert Novak and has been published in Reason Magazine and The American Spectator.

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