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.
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Related Posts:
Taxing Your Mere Existence
IRS The New Health Care Enforcer
Holiday Rush Towards Single Payer
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Comments
I think there is a strong argument that it could be struck down since it would essentially be a poll tax.
If you refuse to pay the tax, you can be convicted of a felony which in some states bars you from voting for life.
Maybe we need a debter's prison system. It harkens back to Old England. However, I suspect the homeless will somehow be exempt from the tax. Or maybe if you turn coat and become a Democrat the "existence tax" that ObamaCare promises will be forgiven?
There is a great deal that the current administration is doing that appears on its face to be unconstitutional, but those issues haven't reached the High Court yet.
What's that phrase?
"Liberals design government assuming they are in charge. Conservatives design government assuming their enemies are in charge."
How about an abortion tax? Or a liberal tax? Or a tax if you live in the zip codes that constitute San Francisco?
Of course ObamaCare(tm) is unconstitutional. It doesn't require someone to read tea leaves to interpret the Commerce Clause penumbras to know that (or to ask what they do in France regarding constitutionality). Cap and Trade, ObamaCare, EPA controlling every CO2-emitting activity are all unconstitutional on the face of it.
And, of course, it doesn't matter at all. We have stopped being a constitutional republic for some time now. Our betters in Washington DC–and SCOTUS is fully part of this–will decide what the peasants will do and all of us will follow. There is no meaningful constitutional limit on federal power any longer.
Thanks for the exceptional video – these guys presented great arguments on both sides. I believe that Volokh's argument was weak; however, the question is what would the SCOTUS decide? I have to believe that with Roberts and the others, they would vote to limit Congress' powers. The men in black have to keep the balance of power, or we lose our liberty.
natewinchester is correct. While it may sound good to liberals to let Nancy, Harry, and Obama oversee their personal care, what happens when someone you don't like is in charge?
When government is small, more people experience liberty and freedom. When government is large, as the health care debate proves, there are winners and losers. I have noticed that when laws are enacted to expand government in individual's lives, individualism takes a back seat to collectivism, and religous freedom generally suffers. In the gay/lesbian debate, I think it has been shown that religion does not have government protection, for example the Catholic adoption agency in MA. that chose to close rather than adopt children out to gay couples after being denied an exemption.