- The Washington Times - Monday, January 31, 2011

A secondfederal judge has just ruled that Congress exceeded its constitutional authority when it mandated that most Americans must purchase health insurance starting in 2014.

Whatever the Supreme Court eventually decides on that constitutional question, the so-called “individual mandate” is an unprecedented expansion of government power.

The government has long claimed the power to coerce you not to act in specific ways. In other words, the government says “You can’t do X.” This happens, for example, when a law says you can’t drive above the speed limit or steal from your neighbor.

The government also claims the power to coerce you to act in specific ways, but when it does so, it rarely says “You must do X.” Instead it says, “If you choose to do X, you must do X in a certain manner.” For example, if you choose to build a house, you must comply with building codes. Or it says, “If you choose to do X, you must do Y as well.” If you choose to earn taxable income, you must file a tax return and pay a tax; or if you choose to drive a car on public roads, you must purchase auto insurance.


Until now, the only time the federal government has flat-out said “You must do X” has been in the case of military conscription. In that case, the government coercion has had nothing to do with a choice you’ve made. It has applied merely because you reside in this country. (State laws requiring the education of children are similar.)

The Obamacare individual mandate is like military conscription. The government coerces you to act in specific ways (purchase health insurance) merely because you are a citizen. You cannot make a choice to forgo certain activities and avoid the government coercion.

The problem is that if the government can force you to purchase health insurance, what limits are there on its power? Why can’t it also force you to purchase a GM car or join a health club? For that matter, what principle prevents it from forcing you to exercise to stay healthy?

And the idea that the government has this much power is inconsistent with the fundamental idea that underlies the theory of rights in the Declaration of Independence - the idea that we own ourselves and therefore, have the right to be left alone as long as we honor the equal right of others to be left alone. If the government can prohibit inactivity by forcing you to purchase health insurance or join a health club, you really don’t have any sphere of self-ownership or autonomy and are completely at the mercy of the government.

So before you accept the idea of Obamacare’s individual mandate, keep in mind what it really means: an unprecedented expansion of federal power based on a concept of rights that is inconsistent with our founding principles.

Jack Painter is a corporate lawyer and lives in Cincinnati. He is the leader of the Indian Hill Tea Party and serves on the advisory board of the Cincinnati Tea Party and the board of directors of the Ohio Liberty Council.