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Op-Ed - Health Insurance Mandate is Unconstitutional


Location: Washington, DC

Written by Scott Garett

Published by the Coloradoan on June 1, 2010

ONE OF THE central planks of the recently passed health care legislation is the so-called "individual mandate." It is also perhaps the most controversial. The provision sets forth a process whereby the federal government defines what qualifies as health insurance, and then mandates that all individuals purchase it under the threat of a penalty.

In 1994, when Congress first considered legislation that mandated individuals purchase health insurance, the non-partisan Congressional Budget Office issued a report that stated: "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States."

This remains as true today as it did 16 years ago.

It is also far, far removed from what our nation's founders envisioned when they wrote the Constitution. They designed a system of checks and balances that divides state and federal authority in the hope of preventing any one government from exerting too much control over the freedom and liberty of its citizens.

As James Madison explained in the Federalist Papers: "[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects."

When Congress does seek to regulate an activity, it must be grounded in one of the specific grants of authority found in the Constitution.

While Congress is granted the authority to "regulate commerce…among the several states," and the Supreme Court has long allowed Congress to regulate and prohibit all sorts of "economic" activities that are not, strictly speaking, commerce, this is the first time in our nation's history that Congress is regulating inactivity.

A first

For the first time, as CBO noted, Congress is mandating that individuals purchase a private good, approved by the government, as the price of citizenship.

If we allow that Congress has this authority under the Constitution, then there is virtually no limit on its authority to compel our nation's citizens to comply with the whims of a congressional majority.

If future Congresses feel that our domestic auto industry needs a boost, they could simply mandate that we purchase a car from General Motors or Chrysler.

Supporters of the individual mandate claim that it is similar to state mandates to purchase car insurance. This is wrong. There is a simple way to opt-out of paying for car insurance: stop driving.

The only way to opt out of paying for the federally mandated health insurance is to stop living.

Supporters also claim that the individual mandate is simply a tax, and that those who forgo insurance must pay a penalty. However, Congress has never been permitted to use taxes as a means of regulating conduct that is otherwise beyond its power. While tax incentives are used by Congress as a means to promote certain behavior, the individual mandate is not an incentive, it is a penalty.

As was reported on tax day last month, the Internal Revenue Service may withhold your tax refund -- money you are owed by the federal government -- if you can't demonstrate that you are properly insured.

But beyond the constitutional question, however, the individual mandate crystallizes the differences in governing philosophy between the two major political parties.

On the one side, President Obama and congressional Democrats believe that the government should centralize control of our health care system in Washington, D.C., restrict the choice of insurance products to only those that are federally approved, and then mandating their purchase.


Republicans on the other hand have proposed reforms that would decentralize the health care system, focus on the patient and their doctor, and promote choice and competition.

My colleagues and I have proposed a series of reforms, such as enacting real medical liability reform, allowing individuals to purchase insurance across state lines and allowing individuals to purchase insurance through groups and trade associations the same way unions can, allowing small businesses to band together to purchase insurance.

We have also proposed expanding the use of low-cost health savings accounts and eliminating the discrimination in the tax code against purchasing insurance through the individual market by allowing individuals to deduct insurance premiums the same way their employers can.

While these proposals are not the final word on health care reform, they certainly would have served as a good starting point for bipartisan reform. Better yet, Congress is granted the authority to enact every one of them under the Constitution.

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