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  • The Individual Mandate in Obamacare is Unconstitutional

    Today, The Heritage Foundation will host an event with Sen. Orrin Hatch (R-UT) discussing the constitutionality of the personal mandate to buy heath insurance. Also, Heritage will be releasing a paper authored by Randy Barnett, Nathan Stewart and Todd Gaziano arguing that this mandate is both unprecedented and unconstitutional. No where in the constitution is Congress granted the authority to mandate that individuals enter into a contract with a private party.

    The argument is that a mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal government action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. Both the House and Senate versions of Obamacare would change this, creating a new precedent that the federal government can force you to buy a private service. These mandates would force all citizens to purchase a specified service that is heavily regulated by the federal government. This new mandate takes federal power to a new, unprecedented level. We all need to remember that the federal government is of limited powers and the Constitution does not authorize members of congress to take force citizens to buy heath insurance.

    Ruth Marcus wrote a defense of the mandate in The Washington Post on November 26th where she claimed that “the power to regulate interstate commerce and the power to tax” in the Constitution grant Congress the power to force citizens to buy health insurance. Marcus wrote that “the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.” Marcus seems to claim that people choosing not to purchase health insurance, failing to participate in the commerce of health care services, somehow grants the federal government the power to force citizens to engage in health care commerce.

    If that argument does not work for you, Marcus argues that the power to lay taxes is another potential source of authority for the mandate. The problem with that argument is that Congress is fining individuals for not having health insurance; they are not levying a tax in the traditional sense. Either way you slice it, the individual mandate seems unconstitutional and this debate would be great to have on the floor of the United States Senate during this important debate.

    Sen. Mike Johanns (R-NE) has an amendment to provide for an expedited constitutional review of the individual mandate and this issue may become the center of the debate on the Senate floor for a day during the Obamacare battle currently underway in the Senate. There are rumors that a Senator may make a constitutional point of order against the individual mandate to force a vote in the Senate. Either way, the constitutional basis for a mandate should be part of any Senate debate on Obamacare.

    Posted in Legal [slideshow_deploy]

    25 Responses to The Individual Mandate in Obamacare is Unconstitutional

    1. J.C. Hughes, Texas says:

      For the leftists in congress, it's about forcing folks to pay for public care. For Obama's gang, it's Chicagoan protection money. In other words, it's about federal extortion. Once a crook, always a crook?

    2. Ozzy6900, CT says:

      The Supreme Court has the final say on constitutionality of anything coming off the "Hill". I fear that even the Supreme Court will fail to uphold our beloved Constitution!

    3. Dustin Whitmire, Tex says:

      Finally, some concrete congressional discussion on the unconstitutionality of this legislation may begin. Unfortunately, it sounds like it will only go on "for a day". How far we have gone in this administrative, progressive government when the consitution is viewed only as a historical inception point, and not an ongoing plumb line and rod of accountability.

      The unconstitutionality of this legislation is the paramount issue.

    4. Pingback: The Individual Mandate in Obamacare is Unconstitutional « Thoughts Of A Conservative Christian

    5. Peter Asher, Oregon says:

      The key element in throwing out the Commerce justification is that regulating commerce is distinctivly different from requiring people to engage in it.

    6. Joe, South Dakota says:

      Congress could simply impose a $1000 tax on all citizens. Then, give anyone with proof of insurance a $1000 tax deduction. Thus, there would be no individual mandate on anyone, but they would be stuck with the new tax if they chose not to get insurance.

    7. freebird, New York C says:

      THANK GOD finally the heavy hitters are questioning this.

      They can NOT make anybody buy this product. It is for personal use.

      I am FURIOUS. HOW DARE anyone even SUGGEST that we could face fines and JAIL time and be held accountable to the I.R.S.! for not buying health care, and need to prove what kind you buy, etc.

      HOW DARE THEY !!!!!! Brave New World is HERE !!! Fight it !!!

    8. JohnR, Michigan says:

      Good luck with this argument. I can't see very many courts agreeing to limit Federal power to this extent. I mean, if they can't FORCE us to buy insurance, why should they be able to FORCE us (through taxes) to "buy" social security or Medicare?

    9. EJM, Geneva says:

      Words like "taxes" and "commerce" can be twisted endlessly. Would that we could ask Madison, Jefferson or Adams directly, but anyone familiar with the thinking of the founders knows that they would be astonished at the usurpation of power which the federal government has undertaken since their time. The truth is that most of what the federal government does is unconstitutional, and that includes fighting every undeclared shooting war we have been in since 1945.

      The insurance mandate is one more significant step in the erosion of our freedoms. If this passes and is allowed to stand, more federal control is inevitable, until as Reagan said so eloquently, we will be looking back, telling our grandchildren about a country that used to be free.

    10. Pingback: The Individual Mandate in Obamacare is Unconstitutional – The Foundry « HOME – Other Right Links and Posts

    11. Mike Henderson, NV says:

      So I, a citizen, refuses coverage and I have to pay a fine or go to jail. I pay the fine and I get nothing in return.

      The illegal alien does not pay a fine or go to jail. But they can collect benefits?

    12. Ruben, NJ says:

      Joe from SD hit the nail on the head–the mandate that is punishable with a $750 fine is simply a tax. To mandate in legislation that Americans MUST engage in Commerce is unconscionable.

      As an aside, the engine of the "savings" from this legislation is eliminating the $40 to $50B of fraud and waste in Medicare/Medicaid.

      Rooting out those savings be the mandate of the Executive Branch regardless of whether this Healthcare bill passes !

    13. Sherie, CA says:

      I believe we should file a class action suit and tie this whole health care reform up in court for years to come just like the environmentalists and other similar organizations do!

    14. Randy, Texas says:

      It is without question that a government mandate for a individual to buy anything from a private company is unconstitutional. The Congress does not have this power. This will be reviewed by the US Supreme Court, if they fail to uphold the Constitution then it is up to the people ' We the People" to form a new government.

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    16. David, VA says:

      EJM from Geneva has it right. Most everything the federal government does is unconstitutional. My own opinion is that what permits congress the ability to grab all of this power comes down to the ability to spend money that they don't have. This allows them to curry favor just about anyway they choose. They continue to assert control over states by threatening to stop paying part of the states budgets. Then we here these politicians running around calling other governments corrupt. Those who live in glass houses shouldn't throw stones.

      With respect to the tax issue, I think you have to look at a lot more than just the so called fine. Clearly the whole premium paid by anyone who wouldn't otherwise buy health insurance must be considered a tax. Once the federal government gets done stipulating what kind of policy everybody has to buy, that they otherwise wouldn't, then the same logic applies to the premiums paid by everybody who wants to buy insurance. I suspect that following this rationale would put our tax rate as well as dependence on government right up there with the most socialist countries.

    17. ANDY, Louisiana says:

      Most of the legislation and activities of this current administration have been in blatent opposition to the will of the majority of the people, including their own constituents, and much of it is unarguably unconstitutional, as has been well noted. Since everyone in office in both Federal & State Governments, and the Military, is Sworn to "Defend the Constitution", I would ask, "Who is defending it now?" It's obvious, and well docummented, that the power players in this administration are bent on systimatically destroying our constitutional government and replacing it with something ratically different. If that's not Treason, then what is? Where is the outrage? Where are the "Recall Petitions"? There is no requirement to wait for an election to recall an out-of-control politician, even a president.

      The "TEA Party" movement should fill the capitol mall with 200 to 300 thousand people, pitch tents and camp-out, with huge signs and magaphones. They should be loud and persistent, but civil. They must make it obvious that they plan to stay until (1) they are acknowledged, (2) these unconstitutional programs are reversed, and (3) the renegade politicians are replaced with genuine, conservative "Statesmen", and "Stateswomen".

      This type of peaceful demonstration / protest is exactly what occured in 1963 and it worked then.

      That is exactly what must happen now if conservative government, "of the people, by the people and for the people" is to be restored; and real capitolistic opportunity returned to this great nation.

    18. RPM says:

      Mock & Tolin: The Constitutionality of the Health Insurance Tax

      Rodney P. Mock & Jeffrey Tolin (California Polytechnic State University, San Luis Obispo — Orfalea College of Business) have posted Purchase or Else: The Health Insurance "Tax", 126 Tax Notes 224 (Jan. 11, 2010), on SSRN. Here is the abstract:

      With the Affordable Health Care for America Act, H.R. 3962, passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”

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    20. Cathy, Tennessee says:

      Yes, we need to begin an across the board, citizen class action lawsuit, simultaneously.

      In addition, since this bill contains special exclusions and provisions for organizations, lobbyists, and unions, it poses another extreme unconstitutional issue. If there is a bill mandating citizens to do anything, it must be equal to all citizens.

      Fight for our free America!

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