Last week, the House of Representatives passed the Senate’s healthcare reform bill, sending it to President Obama for his signature or veto. As the President was signing the document into law, however, the Attorneys General of twelve states filed a joint lawsuit against the national government. They claim that, in passing the healthcare law, Congress exercised a power it is not granted in the Constitution, and thus violated its constitutional obligations. The Attorneys General are correct.
Their entire case against the new law is built upon the claim that the so-called “individual mandate”—which requires all citizens of the United States to purchase health insurance, and all businesses employing more than fifty employees to purchase insurance coverage for their employees—has no grounding in the Constitution. Let’s examine that claim.
The Constitution grants Congress the power “To regulate Commerce with foreign Nations, and among the several States,” but no part of the above clause implies that Congress has the power to force an individual or group of individuals to engage in commerce. The similar language used regarding both inter-state and inter-national commerce implies that Congress has the same power to regulate commerce over state boundaries as it does to regulate it over national boundaries—Congress may, of course, enact tariffs and restrictions on international commerce, and thus has the power to do the same over interstate commerce.
No one, however, claims that Congress has the power to force a person to engage in inter-national commerce; and if Congress does not have this power, then surely it does not have the power to force a person to engage in inter-state commerce.
In any case, the current nature of health insurance commerce makes the inter-state commerce clause moot to the issue: people may not, under the laws of the fifty states, buy insurance over state boundaries—a plan sold in one state can not be freely sold in another state. Congress has no power over intra-state commerce; since most, if not all residents of each state can only engage in intra-state commerce to buy health insurance coverage, Congress has no constitutional power over their decisions regarding the purchase and sale of health insurance.
Within the new law, however, the requirement has been framed as a tax, and not a mandate. So instead of forcing people to purchase insurance, at penalty of a fine, the law taxes people who choose not to purchase insurance. Supporters of the new law claim that, since Congress of course has the constitutional power to tax commerce, this tax is therefore constitutional. But if you fail to see a difference between a tax and a fine, you are not alone. A tax is a fine, plain and simple.
But does that make it unconstitutional? Let’s presume that it does not.
If Congress has the power to enact this particular tax, then logically it has the power to enact a tax structured in the exact same way, but infinitely steeper. After all, the Constitution mentions nothing of the degree to which Congress may exercise its powers, but only which powers Congress may exercise.
Now, if Congress has the power to tax a person for choosing not to buy health insurance coverage, it logically also has the power to tax a person for failing to engage in any other kind of commerce—and to tax them to any degree of magnitude for such a failure. So, if the health insurance tax is indeed constitutional, then Congress therefore has the power also to tax a person, at any rate or lump sum amount, for failing to: purchase an automobile, purchase a hat, install and annually maintain cable television service, purchase a dryer machine, set up and maintain a credit card or mutual fund account, donate to a religious organization annually, donate to a political cause annually, subscribe to a magazine annually, purchase a gas-powered oven, purchase an annual membership to a fitness center, annually purchase any mandated amount of energy drinks, or organically-grown food, or inorganically-grown food, subscribe annually to a weight-control program, purchase bullet-proof windows, purchase cameras and microphones to be installed in one’s place of residence or engage in any other activity in which money changes hands.
Some of the above examples may seem ridiculous, and certainly unconstitutional, because any law regarding them would violate the treasured “right to privacy.” But the Constitution does not explicitly deny Congress the power to infringe on citizens’ privacy, and does not specify any right of privacy for the people of the United States. And Congress, in specifying what actions people must take regarding their health, has demonstrated a lack of concern with any “right to privacy.”
It might appear, by my reasoning, that I believe all taxes to be unconstitutional. As the Constitution specifically grants Congress the “Power To lay and collect Taxes,” it is obvious that many taxes are indeed constitutional. The difference between the health insurance tax and the taxes allowed under the Constitution is that the taxes allowed under the Constitution are those that taxes engagement in a specified activity, while the health insurance tax taxes non-engagement in a specified activity.
A tax on engagement in an activity still allows a great degree of freedom of choice—for example, if Congress were to tax the purchase of health insurance coverage at an exorbitant rate, one could join a health savings pool instead. The tax on refraining from purchasing health insurance coverage, however, leaves no freedom to choose—instead of “you must not,” the law says “you must,” funnelling everyone into, instead of pushing them away from, a single specific outcome: the purchase of health insurance coverage.
If Congress has the power to force people to buy any service or good, at penalty of a tax of any rate or lump sum amount, in any way not explicitly denied it by the Constitution, then what powers does Congress not have at its disposal? Is there anything that Congress may not do?
Someone has finally hit the nail on the proverbial head! Thanks you for such a great summation of the illegality of the new law.
Its pretty obvious that the systems have been failed for years because of the occult
cults listed and the parties. The systems over sight was broken by hackers in the press
and on wall street. Its pretty clear that forced failed business practices such as health
insurance is unlawful but with failed two faced institutions, the usa seems as doomed
as it did about a ninety years ago with the GM dark agers. The Nazies have done
a huge amount of damage to the usa for years esp the past sixty years. But that is
the true dark age history of the parties. IBM is still around as a dark age Nazi group
along with Big OIL. Its a scary plight combined with the greed and veri chip B E A S T.
Patience however often brings joy no matter how dark age the usa becomes.
Oh, I do so hope, because I see this on a Web site called “The College Voice” that you are a young student, Mr. Hartsoe!
I spend a great deal of time, these days, weeping as I watch my country abandoning all of the glorious principles upon which it was founded, and thinking to myself how there are no young minds around who understand the IMMORALITY of this law, in spite of its appeal to our compassion and our wish to help our fellow citizens in distress.
Reading your careful consideration of the real issue, and recognizing that you DO understand, gives me some renewed hope that all is not lost.
I cheered and shared the link to your essay with others who will be pleased to read it.
So much rubbish. How can you talk about the “immorality” of a bill which will be saving approx 5,000 uninsured American lives every year and prohibiting fat cat insurance companies from using recission as a profit strategy…sending insured sick & elderly Americans to an early demise. THAT’s IMMORAL.
As for unconstitutional – the General Counsel of Constitution Accountability Center doesn’t seem to agree with all you acerbic, erroneous character assassins. Au contraire, she says the empty time & money-wasting political theater, which these lawsuits represent. ..filed like sore losers on the day the bill was passed…is unconstitutional, and Federal law in this matter trumps State:
“The recent enactment of health care reform legislation has generated substantial debate. Some of the loudest voices have been state politicians critical of the Patient Protection and Affordable Health Care Act, who claim that the Act violates our Constitution and principles of federalism. However, the words of the Constitution and the text of the Act itself tell a different story: the Act actually preserves the vibrant federal-state partnership that is the hallmark of our federalist system and falls well within Congress’s constitutional powers.
http://www.theusconstitution.org/page_module.php?id=123&mid=2
7 pages worth reading
Don’t forget – President Obama was a Professor of Constitutional Law at Chicago Univ. He’s also an exceptionally bright man…he knows what is & isn’t “constitutional”.
“the General Counsel of Constitution Accountability Center doesn’t seem to agree with all you acerbic, erroneous character assassins.”
Nor do I agree with her. She is wrong, very wrong. After practicing law in the federal courts for 28 years I have a fair idea what is constitutional and what is not. Mr Hartsoe’s article does a fair job of laying out several of the concerns with this law — a much better job than Ms. Wydra does.
I would suggest that Ms. Wydra go back to law school and finish her education. If Congress can compel all Americans to purchase a good or service defined by Congress, then what limits on Congress’s powers are left? Does Congress’s power to regulate beef production also give it the power to compel all Americans to buy a pound of hamburger every month or face a fine? That is completely silly. If Obama ever taught constitutional law he should be aware of these matters and it is all the more shameful that he backs this horrid law.
Not only are the lawsuits against this law well founded, but they will ultimately prevail and this law will be struck down. Because the 2700 pages of legislation does NOT contain a severability clause, it is possible that the entire law could fail.
Can people in this country not see the moral depravity involved in refusing to treat any person who is sick? Because someone was born into poverty or a genetically-inherited condition, you’re going to let that person go without healthcare coverage and (possibly) die? This, to me, is unconscionable. Doctors are trained and taught so that they may “do no harm,” as the Hippocratic oath says, yet they are part of a system that constantly propagates harm onto 40 million people in this country every year.
I don’t know if this bill was the best answer to the problem, but at least it gave me some hope that there may be people in this country who care about their fellow citizens’ basic (and arguably essential) needs over their own luxuries/indulgences.
Your analogy comparing Congress’ ability to compel the purchase of health insurance to its ability to compel the purchase of an auto, hat, etc. is a false one. If one fails to purchase an auto and needs to go somewhere, that person can walk, bike, or take the train. No one is legally required to give that person a ride. Contrast this to the purchase of health insurance where, if one fails to purchase insurance and gets run over by a car, or gets cancer, or contracts some other disease, an emergency room is required by EMTALA to treat that person. And treating that person costs money. So it seems fair (and constitutional) that the person receiving the treatment be forced to pay, in the form of a tax, for that guarantee of treatment if one does not purchase health insurance.
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