Over the summer I repeatedly sounded the alarm about one particular aspect of the Democratic health care proposals, the mandate that individuals purchase insurance under threat of penalty or incarceration. At the time I noted the unprecedented nature of the mandate, in my post Taxing Your Mere Existence:

This tax, though, is unlike any other tax. Normally, the federal government taxes income, the purchase and sale of goods and services, and other economic behavior. To the extent the tax laws address non-economic behavior, i.e., one’s mere existence, those laws grant credits or deductions (for example, for a dependent).

I am aware of no other tax resulting from one’s failure to engage in economic activity. Under these draft bills, if you exist, the government taxes you unless you engage in economic activity (and the government may tax that activity as well, as in the case of expensive employer-provided health care plans).

As to the constitutionality of the mandate, I noted that there was a split in opinion. So I call your attention today to a very interesting analysis at the Heritage Foundation website, arguing that the mandate is unconstitutional. The analysis points out, as I did, the truly unprecedented nature of the mandate:

Never in this nation’s history has the commerce power been used to require a person who does nothing to engage in economic activity. Therefore, no decision of the Supreme Court has ever upheld such a claim of power. Such a regulation of a “class of inactivity” is of a wholly different kind than any at issue in the Court’s most expansive interpretations of the Commerce Clause. A mandate to enter into a contract with an insurance company would be the first use of the Commerce Clause to universally mandate an activity by all citizens of the United States.

Today, even voting is not constitutionally mandated. But, if this precedent is established, Congress would have the unlimited power to regulate, prohibit, or mandate any or all activities in the United States. Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people. For this reason it is highly doubtful that the Supreme Court will uphold this assertion of power.

I will leave the constitutionality question to people more learned than I am in the Commerce Clause. For me, it is as much a political question as it is a matter of constitutional authority.

Here is an interesting video of a discussion on the constitutionality of the mandate with Orrin Hatch, Eugene Volokh and Randy Barnett (via Instapundit via Volokh Conspiracy):

Assuming for the sake of argument that the mandate were constitutional, why would we want it? Why do we want to give Harry Reid, Nancy Pelosi and Barack Obama the authority to force us to purchase goods and services, and to dictate the terms of the purchase?

This should not be a conservative versus liberal argument. Do liberals really want to so empower the Republicans who will occupy similar positions in the (near?) future, when the goods and services mandated may not be as palatable to liberal sensibilities?

I hope the mandate does not pass, and if it passes, that it is stricken as unconstitutional.

But if the mandate survives on the back of liberal politicians and judges, I don’t want to hear liberals complain in the future when they have to purchase the items on our conservative shopping list.

Related Posts:
Taxing Your Mere Existence
IRS The New Health Care Enforcer
Holiday Rush Towards Single Payer

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