Today, The Heritage Foundation will host an event with Sen. Orrin Hatch (R-UT) discussing the constitutionality of the personal mandate to buy heath insurance. Also, Heritage will be releasing a paper authored by Randy Barnett, Nathan Stewart and Todd Gaziano arguing that this mandate is both unprecedented and unconstitutional. No where in the constitution is Congress granted the authority to mandate that individuals enter into a contract with a private party.
The argument is that a mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal government action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. Both the House and Senate versions of Obamacare would change this, creating a new precedent that the federal government can force you to buy a private service. These mandates would force all citizens to purchase a specified service that is heavily regulated by the federal government. This new mandate takes federal power to a new, unprecedented level. We all need to remember that the federal government is of limited powers and the Constitution does not authorize members of congress to take force citizens to buy heath insurance.
Ruth Marcus wrote a defense of the mandate in The Washington Post on November 26th where she claimed that “the power to regulate interstate commerce and the power to tax” in the Constitution grant Congress the power to force citizens to buy health insurance. Marcus wrote that “the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.” Marcus seems to claim that people choosing not to purchase health insurance, failing to participate in the commerce of health care services, somehow grants the federal government the power to force citizens to engage in health care commerce.
If that argument does not work for you, Marcus argues that the power to lay taxes is another potential source of authority for the mandate. The problem with that argument is that Congress is fining individuals for not having health insurance; they are not levying a tax in the traditional sense. Either way you slice it, the individual mandate seems unconstitutional and this debate would be great to have on the floor of the United States Senate during this important debate.
Sen. Mike Johanns (R-NE) has an amendment to provide for an expedited constitutional review of the individual mandate and this issue may become the center of the debate on the Senate floor for a day during the Obamacare battle currently underway in the Senate. There are rumors that a Senator may make a constitutional point of order against the individual mandate to force a vote in the Senate. Either way, the constitutional basis for a mandate should be part of any Senate debate on Obamacare.