Mandates Must be Unconstitutional

by Warner Todd Huston | September 21, 2009 9:00 am

Imagine a day when a president could tell you that you have to buy something or become a criminal via federal law if you don’t. Imagine a day when you are not allowed to choose not to buy a certain product. In a land of true freedom and liberty worrying about the arrival of such a day would seem ridiculous. But what was once risible is now a frightening reality if Obamacare gets passed.

Now, if Obamacare passes, any citizen that does not “choose” to buy healthcare insurance will be deemed a criminal that will be penalized under the law. Obama’s IRS stormtroopers will come a’knockin to make sure you fulfill your duty to the state.

So what could stop these anti-liberty mandates? According to David B. Rivkin, Jr., and Lee A. Casey, the Constitution of the United States should. Rivkin and Casey maintain in recent Wall Street Journal piece[1] that Obama’s forced insurance mandates are un-Constitutional.

Rivkin and Casey rightly point out that the framers and the Constitution properly gives Congress the right to tax. The pair also discussed the rather elastic commerce clause that has been warped all too often to excuse so much federal government overreach already. But if Congress has the power to force American citizens to buy insurance, the pair say, it will be found in Article 1, Section 8 of the Constitution where Congress is given the power to, “tax, borrow and spend money, raise and support armies, declare war, establish post offices and regulate commerce.”

Of course, healthcare mandates cannot in any way be called a “tax” even though the Baucus Senate bill tries to use subterfuge to define away reality. The Baucus bill pretends that an “excise tax” is being levied to force Americans to buy insurance instead of what is more properly called a penalty. The reason Baucus calls it an “excise tax” is because they know full well anything else is illicit.

Naturally, Rivkin and Casey feel certain that this so-called excise tax is unconstitutional.

But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a “tax” that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule were otherwise, Congress could evade all constitutional limits by “taxing” anyone who doesn’t follow an order of any kind–whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.

If President Obama cannot get his forced insurance mandates this plan is impossible to pay for, everyone knows. So, Democrats have to hide the truth with false language. But let us hope that this whole mess quickly appears before a Supreme Court that honorably denies this president his socialist styled policy.

Sadly, we are in an era where Congress cannot be relied on to abide by the Constitution (campaign finance, anyone). We are in an era where Congress obviates that document and we have to rely on a shaky Supreme Court to help guard the integrity of the law of the land.

Be sure and Visit my Home blog Publius’ Forum[2]. It’s what’s happening NOW!

  1. Wall Street Journal piece:
  2. Publius’ Forum:

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