- The Washington Times - Monday, November 2, 2009

ANALYSIS/OPINION:

A constitutional debate among legal scholars is being waged over a key provision in the Democrats’ health care legislation that poses this question about the freedom to be an American: Can the federal government force people to purchase medical insurance or pay a tax if they refuse?

Members of Congress, believing they are a power unto themselves far beyond the constraints of the Constitution, have a history of passing laws infringing upon our freedoms ever since the Alien and Sedition Acts.

The McCain-Feingold campaign finance law trampled our First Amendment right to express ourselves in the political marketplace during an election through our contributions or campaign ads - an abuse of power the courts partly curbed and may eventually deconstruct altogether.

Congress has never before required Americans to buy a product or service under penalty of law. Yet that’s precisely what the health care bills pending in the House and Senate would do in the age of Obama, despite compelling arguments that the Constitution gives lawmakers no power to do so.

When President Clinton and first lady Hillary Rodham Clinton proposed health care legislation that made the very same demands, the Congressional Budget Office felt compelled to make this self-evident observation outside its purview as Congress’ auditing clerk:

“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 wrote in August 1994.

“An individual mandate would have two features that, in combination, would make it unique. First it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

Any citizen who dared to refuse Congress’ imperious edict would be slapped with a severe fine starting at $200 in 2014 and rising to $750 in 2017. The specter of an all-powerful government enforcing such a law led some concerned Republican lawmakers to point out that willful refusal to pay the so-called “excise tax” penalty to the IRS could lead to further fines and/or imprisonment.

Columbia University health policy professor Sherry Glied, named by President Obama to a top management post in the Department of Health and Human Services, warned that the process of “developing a system to promptly identify and penalize scofflaws … may require a degree of intrusiveness and bureaucracy that some will find unpalatable.”

In other words, lock your doors and pull down your shades because the health insurance police are coming.

All of this has sparked a furious legal argument among constitutional scholars and health care analysts that has been largely overshadowed by the political debate on Capitol Hill over the bill’s massive costs, mandates and assorted intended and unintended consequences on the health care industry.

“Where in the [Constitution] is the power to mandate that individuals buy health insurance?” asked Randy Barnett, a professor at Georgetown University Law Center, in a recent analysis posted on the Politico Web site.

There is none, he said.

“This is not a public health issue. It’s not the same thing as a response to swine flu. This is the federal government telling you for the first time that you are going to buy a product that the federal government has defined, at the cost of anything else, including whether you believe you can afford it or not,” said Dennis G. Smith, senior fellow in health care reform at the Heritage Foundation.

Mr. Smith, along with Peter Urbanowicz, a health management consultant and attorney, also warned that the mandate’s enforcement “would invite [constitutional] scrutiny as well.” That could raise further constitutional concerns about “whether an individual mandate further comports with protections under the Bill of Rights on ‘free exercise’ of religion and against government takings,” they said.

In a Washington Post column, attorneys David B. Rivkin Jr. and Lee A. Casey said Congress has no constitutional power to tell us what we must buy or else.

“The Constitution assigns only limited, enumerated powers to Congress, and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it,” they wrote.

There are those on the other side of this argument who point out that the Supreme Court has over the past several decades embraced a much broader view of the Constitution’s power “to regulate commerce … among the several states” that has allowed the government to poke its nose into every nook and cranny of our economic life. And that they will likely do the same in this case if, as is likely, the mandate is challenged in court.

But the “business of providing health insurance is now an entirely intrastate activity,” beyond the purview of its interstate commerce powers and thus is left to the states to regulate, Mr. Barnett reminds us.

A 20th-century wag once said he was “all for progress but it’s gone too far.” He could have been talking about the Democrats’ latest attempt to compel millions of Americans to buy a service they do not want, may not need and cannot afford.

Donald Lambro is chief political correspondent for The Washington Times.

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