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  • House Hearing: Could the Individual Mandate Create a National Police Power?

    Last week, the House Judiciary Committee held a hearing on the constitutionality of the individual mandate. The mandate has been declared unconstitutional by federal courts in Virginia and Florida, and appeals are pending in those cases.

    The committee heard from three legal experts: Virginia Attorney General Ken Cuccinelli, Duke University law professor Walter Dellinger, and Georgetown University law professor Randy Barnett. Testimony touched on several aspects of the individual mandate, which requires Americans to purchase a level of coverage deemed appropriate by the Department of Health and Human Services or else pay a penalty.

    A main focus of the discussion was how allowing the individual mandate to stand would change the powers of Congress. Proponents of Obamacare claimed the power to require all citizens to purchase insurance is constitutional under the Commerce Clause, which allows Congress to regulate interstate economic activity. But since the mandate actually regulates economic inactivity, it is unprecedented.

    Said Cuccinelli, “The claimed power exceeds Congress’s enumerated powers because it lacks any principled limit and is tantamount to a national police power—that is, the power to legislate on matters of health, safety and welfare that was considered part of the reserve powers retained by the States at the time of the Founding.”

    Dellinger, who served as Acting Solicitor General during the Clinton Administration, argued that the individual mandate is constitutional since it is necessary for the new insurance regulations included in Obamacare to operate successfully. Furthermore, he pointed to the uniqueness of the health care market, stating, “No one can ever be certain he or she will never receive medical treatment. Health care can involve very expensive medical treatments that are often provided without regard to one’s ability to pay and whose cost for treating the uninsured is often transferred to other Americans. These qualities are found in no other markets.”

    But this argument doesn’t hold up. Barnett said, “While the government could try to condition the activity of delivering health care on patients having previously purchased insurance, in the Affordable Care Act it did not do this. The fact that most Americans will seek health care at some point or another does not convert their failure to obtain insurance from inactivity to activity and so does not convert the mandate to buy insurance into a regulation of activity.”

    Moreover, Barnett points out that without a constitutional principle to differentiate health care mandates from other economic mandates, the fact that the health care market may (for the sake of argument) be different from every other market would not restrict Congress’s future power to apply the same reasoning to other markets without considering whether they are similar to or different from health care. According to Barnett, “once the power to conscript Americans to enter into contractual relations with private companies is accepted here, it will be accepted for any circumstances that Congress deems it convenient to its regulation of the national economy.”

    This would, in effect, remove the limits on congressional power and make it equal in scope to the powers of the states. This would not only fundamentally alter the nature of the relationship between the federal government, the states, and U.S. citizens, but it is, as Barnett reminds us, “a proposition that has always been rejected by the Supreme Court.”

    Heritage legal scholars have outlined extensively why the individual mandate is unconstitutional. Read their work here.

    Posted in Obamacare [slideshow_deploy]

    12 Responses to House Hearing: Could the Individual Mandate Create a National Police Power?

    1. DanJ DTW says:

      Did Dellinger really say – " the individual mandate is constitutional since it is necessary for the new insurance regulations included in Obamacare to operate successfully."?

      If that's true then what he is saying is that it's constitutional because we need it to be constitutional. That's just warped logic. This reminds me of "we need to pass it to find out what's in it."

      As for the uniqueness of the health care market, the Florida judge used Obama's own words to dispel that argument in his ruling quoting then candidate Obama saying that just because everyone should own a home doesn't mean that we can force people to buy houses.

      The argument from the left is nonsensical and now the most recent Liberal court ruling seems to indicate that the government should be allowed to regulate what we think. This from D.C. Judge Mead's ruling -

      "As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality."

      Can it get any crazier? Thinking is an economic activity that can be regulated under the commerce clause. I know that they should be regulating what I'm thinking right now.

    2. West Texan says:

      Well said. I was discussing with a friend, an attorney and criminal justice professor, how the Bill of Rights is the keystone that supports our constitutional republic. He knows I'm a closet anti-federalist. Without the first ten amendments our form of government would surely fail and collapse, look at today's Middle East. Unfortunately social progressives have continued to chip away at this critical structural component of individual and states rights with amendments like the 17th and overreaching social security and medicare laws. Obamacare is simply added insult to an already perverted and undermined federalism. Last I checked, Interstate didn't mean intrastate.

    3. Octavio, Texas says:

      Walter Dellinger is also incorrect because individuals will at some point in time procure food. And no one is required to buy food to spread the costs of a certain kind of food on the population. Also people are going to at some point in time seek shelter. Yet there is no requirement in any legislation that an individual buy or rent a domicile. Is food not more required than health care?

    4. Bobbie says:

      The individual mandate creating a national police power is exactly what the President is waiting for. Remember his neighborhood, (better then military,) task forces? Get this man out of the people's house, please! He is a threat filled with resentment of this country and her intentional strength. Hmm Sounds like a weakness of a religious belief?

      It's too easy for anyone in the positions of authority, who lack all human qualities, who doesn't appreciate or respect America, to take her down.

    5. Pingback: House Hearing: Could the Individual Mandate Create a National Police Power? « South Capitol Street

    6. Pingback: Tweets that mention House Hearing: Could the Individual Mandate Create a National Police Power? | The Foundry: Conservative Policy News. -- Topsy.com

    7. Sunshine, Vermilion, says:

      LOL, Dan! Me too!!

      I truly think that more states will join in the battle against Obamacare once they realize that they will be responsible for MAJOR costs involved in it.

      Has anyone considered the possibility of this mandate as being a backdoor gun control issue?

      The way the law is written, from the way I understand it, is that if people cannot afford to pay for it, and cannot afford to pay the penalties, (which would include A LOT of people, then these people will then have CRIMINAL records. People with criminal records CANNOT own guns. Why are the gun supporters not getting more involved in fighting this issue?

      I view this Obamacare issue as completely unconstituional in all ways, and anyone who says different needs their head examined.

    8. Cincinnati OH says:

      Let's take this logic one step further. It is also in the best interest of the country for all people to have a job and pay taxes. Therefore, we should mandate that "all" able bodied citizens and residents seek gainful employment. The federal state and federal governments should then cease funding all programs that are associated with providing services to the unemployed incuding unemployment benefits, welfare and Medicaid.

    9. Leon Lundquist, Dura says:

      Talk to these Progressive fools, they think they change things just by changing the definition. The real world doesn't work that way, you know, the truth matters. These guys want to control every aspect of our lives, and it really isn't in our interest! I think Obama and his gangster fools are Representing the Foreign Interest with this kind of control. It has nothing to do with Medical Care and everything to do with Communism. They want Socialized Medicine whether Americans want it or not!

      It is no exaggeration to say Demo-crats are looking down the road, past the Health Care Law to that 'wonderful' day when Americans are just another Third World Country with a dictatorship. It really is dictatorship that Obama wants for us! He doesn't care that Americans don't want it! Plain and simple, Obama is a dedicated Communist infiltrator in the full Cold War meaning of the term. We like to discuss reasons, but there are no reasons behind these arguments. I get sick of people who pretend it is reason, like you could talk Obama out of his Communist beliefs! Why don't we talk about the real issue. Progressive Socialists hate the American way of life and they mean to destroy it in every way that they can!

    10. S Rubicon says:

      In fact, I believe the 'individual mandate' could allow the government to exercise any & almost every power it desires. Depending on the political party in power, government control of nearly every aspect of our lives could become a fact of life.

      When founded, the constitution was written with an eye to hold the federal government in check. Especially the federal government. What the government could do 'for us' was limited deliberately. The founders wisely knew once a list of wants, needs, & wishes was added to that document, what we would get is a federal government to not do for us, but with the power to do "to" us! That is why the powers were enumerated. If we allow the federal government this power, then why have a constitution at all. Such an exercise in power would mean the constitution is irrelevant.

      Perhaps that is the ultimate goal? Who knows. All I know is, the federal government must always & constantly be kept in check or those politicians, prone to or susceptible to being bought & paid for, will sell us out for power & monetary gain!

      No thanks. Lets tell them "we the people" will make our own decisions & that means we will handle our own health care choices!

    11. Wes in cincy says:

      Police Power ? nah. That's the job of the 15,000 IRS agents that come along with obamacare.

    12. Pingback: Obamacare and the Fight to Preserve America’s Founding Principles | The Foundry: Conservative Policy News.

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