- The Washington Times - Tuesday, March 27, 2012


This month marks the two-year anniversary of Obamacare’s enactment. For most Americans, it is not a time to celebrate with cake or confetti; it is a solemn acknowledgment of the looming implementation of Obamacare’s most controversial provision - the “individual mandate” that will force every American to purchase government-approved health insurance.

The mandate is more than just unpopular - fully 72 percent of Americans, including 56 percent of Democrats, think it is unconstitutional. Accordingly, arguments have commenced in a landmark Supreme Court case that will decide the issue.

The powers of Congress are limited to those that are enumerated in the text of the Constitution.

Yet, over the years, those powers have been expanded through judicial interpretation so that Congress now regulates more than what the Constitution actually allows. If the individual mandate is upheld, the federal government could, for the first time in history, force Americans to purchase a government-approved commercial product. As a practical matter, this would dramatically erode the limits to what the government could command citizens to do - radically altering the relationship between Americans and their government.

The real purpose of the mandate is to force the young and healthy to compensate insurance companies for the costs imposed upon them by Obamacare’s other regulations. Regardless of whether this is good policy, the Supreme Court has found that Congress does not have a free hand to expand its own powers to suit its agenda.

For example, in United States v. Lopez, the court determined that the Gun-Free School Zones Act of 1990 did not fall within Congress‘ commercial regulatory powers. As Justice Anthony M. Kennedy noted, “While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal.”

In other words, righteous motivations do not determine whether a law is constitutional; for the Constitution, good ends do not justify unconstitutional means.

And, as Justice Kennedy further explained, unconstitutional statutes prevent “the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise.” Sweeping federal mandates prevent the states from fulfilling their constitutional role - implementing policies that fit with their unique needs and populations.

Indeed, before Obamacare, health insurance markets were largely governed by the states. They took widely varying approaches; some worked, others did not. But the new law - even if it were constitutionally permissible - would stamp out health policy innovation at the state level.

Imposition of numerous federal mandates also would eliminate interstate competition. States compete with each other to attract the best companies and provide the best environment for their residents.

When a state gets it wrong, effective policies from another state can be tried - or residents can vote with their feet and move elsewhere. When the federal government gets it wrong, there is no escape.

Yet that’s exactly what we’d have under Obamacare.

Justice Kennedy said this in the recent case of Bond v. U.S.: “Federalism secures to citizens the liberties that derive from the diffusion of sovereign power. … [It] protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions … . By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

We agree.

Congress and the states have ample powers to address our health care problems. Congress has gone 230 years without the power to make Americans buy goods or services from private companies. It has overreached before in asserting unjustified powers. The Supreme Court’s decision will be quite significant as a constitutional principle.

The writers are the Republican senators on the Senate Judiciary Committee.

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