Senate Judiciary Committee Hearing: Arguments for Individual Mandate’s Constitutionality Don’t Hold Up

In the wake of federal Judge Roger Vinson’s ruling that Obamacare’s individual mandate is unconstitutional, yesterday, the Senate Judiciary Committee held a hearing to further examine the issue. The individual mandate forces Americans to purchase a level of insurance deemed appropriate by the federal government or else pay a fine.

Heritage’s legal experts write that the individual mandate is both unprecedented and unconstitutional. Its proponents claim that Congress holds the authority to compel Americans to purchase private insurance under the Commerce Clause, which allows Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Oregon Attorney General John Kroger testified, “In 2009, Oregon spent approximately $2.6 billion on Medicaid and CHIP. Absent health care reform, that figure is expected to grow to approximately $5.5 billion by 2019.” A national solution to the health care systems ailments was needed, he says, to combat rising costs.

But Obamacare makes unsustainable state budget deficits even worse. Heritage analysis shows that, in Oregon alone, spending will increase $443.3 million as a result of the law’s expansion of Medicaid. Furthermore, while we are happy to discuss the cost of health care (and how Obamacare exacerbates it for the states), such a conversation isn’t really relevant to a hearing putatively discussing the mandate’s constitutionality. Put more simply, just because something is important doesn’t mean that it is constitutional.

Because the individual mandate is an attempt to regulate inactivity—the individual’s decision not to purchase insurance, it is outside of the powers granted under the Commerce Clause. Randy Barnett, a Georgetown law professor, explained:

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The distinction between acting and not acting is pervasive in all areas of law. We are liable for our actions but, absent some preexisting duty, we cannot be penalized for inaction. … Expanding the meaning of “activity” to include “decisions” not to act erases the distinction between acting and not acting. It would convert all of your “decisions” not to sell your houses or cars into economic activity that could be “regulated” or mandated if Congress deems it convenient to its regulation of interstate commerce.

If Congress can force Americans to purchase health insurance, they can force them to purchase just about any commodity, and the limited and enumerated powers of Congress would become limitless.

The lawsuits advancing through the courts against Obamacare are not just a promising opportunity to do away with an unpopular, unworkable health care law that puts too much control in the hands of Washington; they are also proper avenues to rein in a historic misuse of the Commerce Clause.

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