The Dillard Doctrine

Urban Conservative Commentary on Politics & Life

The Unconstitutionality of the Individual Healthcare Mandate

The final assignment for this semester…a persuasive speech. Thanks to a few friends in the AG’s office for answering a few questions…

Last year, on Christmas Eve, the United States Senate passed the most sweeping health care reform legislation in American history.  Called the Patient Protection and Affordable Care Act, this legislation has a requirement for everyone in the country to purchase or be covered under an insurance plan that offers what the government terms “minimal essential coverage.”

Unfortunately for the supporters of the individual mandate, as it’s called, such a mandate goes against the principles under which our country was founded, and is unconstitutional. I’m here to explain why, without getting into the many policy arguments that come up in the debate on health care reform.

First, some more background on the healthcare bill:

After it was passed by the Senate, the healthcare legislation was also passed by the House of Representatives and signed into law by President Obama on March 23, 2010. Prior to signature, the bill received little to no review by either house of Congress, with one prominent legislator stating “We have to pass the bill so you can find out what’s in it.” One of the many things that our legislators failed to consider was the bill’s impact on federalism; the division of powers between state and federal governments. Never in American history has the federal government issued a mandate directly to the nation’s citizens without relying on the states to implement and take control of such a mandate.

For example, we all know that we’re required to have insurance on our cars; the individual healthcare mandate is supposed to be similar to the one for auto insurance. However, it differs in two ways; first-contrary to popular belief, there is no federal mandate for auto insurance. Second, the insurance requirement is enacted by the individual states, and insurance requirements among them vary. The comparisons between the two mandates are almost like comparing apples and oranges, as they are vastly different from each other.

So why exactly is the mandate unconstitutional? The first reason is that it violates the Commerce Clause of the Constitution.

The argument used by the bill’s authors to “cover” the law in the Constitution is the Commerce Clause, found in Article 1, Section 8. It reads:

“The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

The authors insist that purchasing insurance-or, more importantly to them, the individual decision not to purchase insurance-constitutes “commerce.” However, their reasoning is flawed.

The original intent of the Constitution’s authors was to grant Congress the authority to regulate commerce that already existed between citizens, states, and the newly formed nation. They did not intend for the clause to be used to mandate citizens to buy products from other citizens. In fact, Black’s Law Dictionary defines the word “regulate” as “to control that which already exists.” By this logic, Congress cannot regulate a “purchase”-in this case, health insurance-until the act of purchasing has already taken place. Further, the authors of the Constitution intended the Commerce Clause to regulate economic activity, rather than economic inactivity. This is why the authors used the word “regulate,” with its passive legal meaning, rather than the words “establish,” “provide for,” or “promote,” which signify actions that are taken to create a system or program not already in existence.

The misuse of the Commerce Clause is one item that makes the individual mandate unconstitutional. The second is the fact that establishes a power of government that goes far beyond anything listed in the Constitution, as well as far beyond the intent of the Founding Fathers.

In an op-ed for the newspaper USA Today in 2009, author Jonathan Turley wrote,

“If the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.”

Turley’s argument is that if the individual mandate is, in fact, constitutional, then by extension the government has the power to compel its citizens to do whatever it pleases. Now, we think, “doesn’t the government already do that?” The answer is yes, it does-but ONLY within the guidelines established by the Constitution.

The Founding Fathers set up the Constitution as a limiting document; that is, it sets the boundaries that the government must operate within. As Virginia Attorney General Ken Cuccinelli stated in a webcast about the healthcare legislation, “if the Constitution doesn’t say the government can do something, it can’t.” The objective of the Constitution was to limit the government to boundaries that were below the powers of the monarchy from which they had just gained their independence, which were almost absolute. Never was the Constitution intended to give the government powers of compulsion.

If you follow the news, you know that Virginia is one of several states suing to challenge the constitutionality of the healthcare legislation, and many of their arguments are similar to those I’ve outlined to you today (although a lot more technical and a lot more difficult to read). Opponents of these lawsuits try to position them as coming from those who don’t support the government being involved in the business of healthcare. I don’t feel the government should be involved in health care, but as a disabled veteran, they are involved in mine. Whether or not you are a supporter of the healthcare legislation or an opponent, it is important to remember that your right to liberty-to live freely and make your own decisions-outweighs any program or practice that the government may attempt to put in place. The individual healthcare mandate is a direct attack on your liberty.

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Written by Coby Dillard

December 10, 2010 at 4:06 pm

Posted in Editorials

Tagged with ,

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