David Jenny writes* in the Bangor Daily News:
The president and Congress agree: Washington’s solution to 46 million uninsured Americans is to “mandate” that they all purchase health insurance from private companies, or — if the president’s view should prevail — a government-run “public option.”
Until now, our federal government has never claimed the power to compel individual citizens to pay insurance premiums to either private companies or government entities.
Astonishingly, no one is asking: “Does the federal government actually have the power to dictate that individuals purchase health insurance?” ....
Article I, Section 8 of the Constitution lists the “powers” granted to Congress. Unsurprisingly, neither that section nor any other gives Congress the “power to mandate” the purchase of health insurance. More importantly, no listed power could reasonably be interpreted to authorize government to coerce the payment of premiums as if they were taxes. ...
The sole, largely unexamined, support for this unprecedented federal mandate is that it is “like” state mandates to purchase automobile liability insurance.
But consider the differences. States reasonably require liability coverage because motor vehicles can cause property damage, physical injury and death. Still, many Americans opt out of auto liability mandates by simply not registering a motor vehicle. Most importantly, no constitutionally guaranteed rights are compromised by such mandates.
The proposed federal health insurance mandate would be imposed on individuals and families merely for being in the U.S. Apparently, citizens and noncitizens alike would be subject to it. There is no way to opt out of the mandate, and the federal government will penalize noncompliance with stiff fines. Such unprecedented overreach threatens important property rights and liberty interests — at least for U.S. citizens.
The due process clause of the Fifth Amendment guarantees: “No person shall be … deprived of life, liberty, or property without due process of law.” Struggling, cash-strapped citizens have property rights to their after-tax dollars that cannot be mandated away. They also have the right to be free from unwarranted government intrusion into their lives. For example, they have the right to be free from a determination of how much they can afford to pay for government-mandated health insurance based on a crude assessment of their financial status.
Proponents state that a mandate is not a tax. Blacks’ Law Dictionary defines a tax as “a pecuniary burden laid upon individuals or property to support the government, and is a payment exacted by legislative authority.” So, the president and other proponents are correct; a federal mandate to purchase health insurance is not a “tax.”
But, if enacted, [the mandate] would be a pecuniary burden laid upon individuals to support shareholders of insurance companies and it would be a payment exacted by unfounded legislative authority.
If government mandates us to support the insurance business what will it mandate next?
Is it too much to ask that Washington cite authority for such a radical mix of government power and corporate profits?
Our Constitution gives Congress the power to tax. Congress has already exercised that power to fund critical pieces of a national health care system, namely Medicare, Medicaid, the Children’s Health Insurance Program and Veterans Affairs health care. Altogether, government covers more than 50 percent of personal health care expenditures while private insurance covers a mere 36 percent. We are more than halfway to national health care.
If spreading the risk of getting sick over the greatest number of people is the goal, some form of tax-funded “Medicare for all” is the lawful way to achieve that goal.
I want to support our president’s efforts to reform our health care system. But Congress and the president must learn that there are limits to the federal government’s authority.
Any plan that mandates the purchase of health insurance will fundamentally change the role of government in our lives. We cannot allow that to happen.
And don't pin your hopes on the Roberts Court. They're corporatists. They'd be perfectly happy to mandate that citizens owe the bankster CEOs droit de seigneur.
NOTE The bio says that Jenny's a retired lawyer. If he's a winger, he's not showing up in Google that way.
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Why did it take so long for this issue to emerge?
I'll answer my own question. The reason that nobody dared raise the issue that the mandate is unconstitutional is because then the ONLY legitimate avenue to reform health care in the US is a government-run single payer system.
As others have pointed out, the last minute House sellout of women's healthcare now makes the mandate EVEN MORE unconstitutional, since it discriminates by gender.
I wonder--will the same buffoons who kept screaming "Socialism! Socialism!" every time the subject of single payer came up also speak up against the anti-libertarian mandate?
MsExPat, got a link on "others have pointed out"?
Needs propagation...
"First they ignore you, then they ridicule you, then they fight you, then you win." -- Mahatma Gandhi
People were discussing this on TalkLeft the other day
Sorry I don't have time to go through the long thread but it's here.
And Jeralyn's just put up another interesting post with a link to an article in Mother Jones on the Stupak amendment's questionable legal foundations.
I'd really like to see a constitutional lawyer weigh in on this. If anyone spots this, please send a link
I honestly don't know where the court would come down here.
Roberts and Alito are corporatists, to be sure; perhaps Kennedy as well. But Scalia's a damn ideologue, and to a lesser extent so is Thomas. If it doesn't fit within his narrow scope of constitutional powers, he's not going to go along with it.
I could see the court ruling individual mandates unconstitutional on a 5-4 or 6-3 vote, with Scalia and/or Thomas being the swing vote going in with the liberal justices.
Nothing is true; everything is permitted.
Certainly would be delightfully amusing to see
the rending of garments when Alito, Thomas, Scalia and Roberts are forced to choose between upholding the two things dearest to their bosoms: the rights of big corporations to suck money from the citizenry, and the supreme sacred principle that Big Government Is No Good.
I don't think constitutional challenges would be
successful. He skips over the Takings clause, which allows the government to take property as long as other due process requirements are met.
I don't have time to look it up at this moment, but I'd be surprised if someone didn't try to challenge the Mass. mandatory health insurance law (operates through the same tax agency mechanism). The Mass. constitution and the federal one are fairly close in terms of due process, etc., and the Mass. courts are in general much more liberal, so if the Mass. law survived I'd be very surprised if the federal law didn't. I'll try to poke around the Mass. law tonight to see if I can back that up.
The federal government passes laws that affect the value of people's property interests all the time. Eg, environmental laws that require minimum levels for safe emissions (causing polluters to buy more or special equipment, etc), local government that passes strict zoning laws and so on.
I know a lot of folks are getting excited about the possibility of constitutional challenges, but I just don't see it.
Reasonable men adapt themselves to their environment; unreasonable men try to adapt their environment to themselves. Thus all progress is the result of the efforts of unreasonable men. -- George Bernard Shaw
some of these ...
The federal government passes laws that affect the value of people's property interests all the time. Eg, environmental laws that require minimum levels for safe emissions (causing polluters to buy more or special equipment, etc), local government that passes strict zoning laws and so on.
... are very important to progressive/liberal interests, so i'm not sure i'd even want the 'it's unconstitutional' argument to succeed here.
Well, that's why we shouldn't adopt a right wing frame
We're not talking about a "taking."
We're talking about forcing people to purchase a defective product in order to bail out an industry. Not the same thing, eh?
"First they ignore you, then they ridicule you, then they fight you, then you win." -- Mahatma Gandhi
Maybe the more narrow angle of a privatized tax?
The comments at the original's link are chock full of responses of how government takings are common. But this is different than Social Security, in which taxes pay for a government program. This is the authority of the government delivering us as customers in a form of privatized taxation.
I agree with Jenny that mandatory auto insurance is hardly comparable. Requiring insurance to operate a piece of heavy machinery on public streets differs little from requiring a license. But a life is not a piece of machinery, and protecting the autonomy of it's existence in The Public was one of the Constitution's greatest concerns.
One comment at the link's site said that based on the car insurance model, it was no different to require human beings to insure their health. Yet, already, we see the power of the State with its foot in the door, beginning to make decisions for the individual. If the State can mandate insurance and use its mandate to enrich donors and pay off other political groups on topics like abortion, then surely the State can also require colonoscopies or any other medical procedure Congressional wisdom and donor profitability decide to publicly finance.
powers not delegated
I'm surprised no one has brought this up, or given how out of it I am, maybe they have and I missed it...
One big difference between this and the auto insurance case (and between this and the Mass. plan) is amendment X of the Constitution, which states:
I recall this due to the very excellent education I received in the Bill of Rights in my PUBLIC (paid for via tax dollars) school. Thank you, teach! (My teacher was an attorney who had retired to teach high school. Best teacher ever prior to college!)
eta: consequently, the States can do things that are forbidden to the Federal Government, provided that they are not also forbidden to the States by the Constitution. This includes printing money, but I can't find a comprehensive list: it would be short anyway. Anyone?
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We can't afford not to have single-payer!
The Tenth doesn't apply
because of the federal takings clause in the Constitution.
This site lays out the requirements and key cases pretty well, at least from what I remember from law school. (note: I have no idea who this guy is, though).
Reasonable men adapt themselves to their environment; unreasonable men try to adapt their environment to themselves. Thus all progress is the result of the efforts of unreasonable men. -- George Bernard Shaw
That's why the campaign against fat people...
... is an important tip-off to what's on the way, KB. Well argued.
"First they ignore you, then they ridicule you, then they fight you, then you win." -- Mahatma Gandhi
There's also evidence that they intend this
as a way around the "guaranteed issue" supposed regulation.
That's completely unacceptable.
The alleged regulations in this bill are weaker than what people are talking about. That's another form of lying about the bill, and it sickens me.
(Going off to investigate all this.)
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We can't afford not to have single-payer!
Re
“Is National Health Insurance Constitutional?” NO! Try telling that to constitutional illiterates like Obama, Reid and Pelosi. They all swore to uphold and defend a document they’ve demonstrating they don’t understanding. Either that or they’re purposely mocking the nation’s principle guiding mandate. Either way, they’re pushing legislation that’s guaranteed to have a catastrophic ending for both healthcare and freedom. Obamamaniacs accuse concerned town hall participants of spreading FEAR? You’re damned right they are. They’ve been given insight into 1000 pages of crafted government power grabbing legalize. True, they don’t sit there like wide eyed Obamamaniacs with their fly traps open soaking up every empty word the demagogues’ spew out. Folks are rightfully scared of the left wing’s unconstitutional and totally misguided health insurance reform bill. It absolutely must not be allowed to pass. If it does, the individual states must summon their powers to challenge the bill’s implementation. Even if it means divorcing themselves from an abusive out-of-control national government.