- The Washington Times - Friday, December 18, 2009

Some say it’s unconscionable. Others say it’s unconstitutional. Either way, it’s clearly unpopular. For any smart senator, it ought to be reason enough not to advance the unwieldy and unworkable health care bill being pushed by Senate Majority Leader Harry Reid.

In this case, “it” is the so-called “individual mandate” that is included in every Democratic version of Obamacare. The bills all force each American to buy health insurance, whether they want it or not. They impose fines of $750 (which would surely rise) for failure to comply. And while the Reid bill forbids government from imposing liens on private property for failure to pay the fine, it still might allow the Internal Revenue Service to subtract the fine amount from individual tax returns. It also provides for civil penalties plus interest.

House Speaker Nancy Pelosi’s version of the bill is worse, by far. Obstinate refusal to pay the fine, after refusal to buy insurance, “is punishable by a fine of up to $250,000 and/or imprisonment of up to five years.” How nice: Buy insurance or go to jail.

Senate Finance Committee Chairman Max Baucus has said that without the individual mandate, the whole complicated contraption falls apart. For every senator even remotely on the fence about the bill as a whole, that reality ought to be a deal killer. Both as policy and as politics, the mandate is a horrible idea.


The moral case against the mandate comes not only from conservatives or moderates, but from the political hard left as represented by powerful blogger Markos Moulitsas of the Daily Kos. On Tuesday night, he wrote: “My take is that it’s unconscionable to force people to buy a product from a private insurer that enjoys sanctioned monopoly status. … It would effectively be a tax - and a huge one - paid directly to a private industry. … If you want a similar model, watch how universities increase tuition to absorb increased financial aid opportunities.”

One need not share Kos’ antipathy for private industry to find it unconscionable for government ever to force people to buy a personal product they don’t want. The Congressional Budget Office has written that “a mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” CBO is right on target.

On the right, many legal analysts have concluded that the mandate is unconstitutional. Against this conclusion, mandate sponsors say their authority comes from the Constitution’s grant of power to Congress to regulate interstate commerce. But in a 16-page Dec. 9 “legal memorandum” published by the Heritage Foundation, Randy Barnett, Nathaniel Stewart and Todd Gaziano note that “the individual mandate provision regulates no action. To the contrary, it purports to ‘regulate’ inactivity … [in other words,] the doing of nothing at all! … If Congress can mandate this, then it can mandate anything. Congress could require every American to buy a new Chevy Impala every year. …”

The American people recoil at such assaults on their freedom. An Oct. 19 Galen Institute poll showed that 71 percent of those surveyed oppose an individual mandate. A Nov. 16 Associated Press poll showed 64 percent disapproval. Public opposition to government health care has grown over the past month, so the numbers against the mandate are likely even higher today.

Unconscionable, unconstitutional, unpopular - that’s a trifecta no sensible senator would embrace.