Proposed Health Care Legislation is Unconstitutional

That's the conclusion of a detailed article in the Wall Street Journal. The three authors are Mr. Randy Barnett who is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, Mr. Nathaniel Stewart who is a lawyer at the firm of White & Case, LLP, and Mr. Todd F. Gaziano who is the Director of the Center for Legal and Judicial Studies at The Heritage Foundation.

They summarize the article as follows:

"The purpose of this compulsory contract(the individual mandate), coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize coverage for others as well as an industry saddled with other government costs and regulations. Congress lawfully could enact a general tax to pay for these subsidies or it could create a tax credit for those who buy health insurance, but that would require Congress to 'pay for' or budget for the subsidies in a conventional manner. The sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or--through the gimmick of unconstitutional taxes or penalties they dub 'shared responsibility payments'--make these transfers appear to be revenue-enhancing.

"This 'personal responsibility' provision of the legislation, more accurately known as the 'individual mandate' because it commands all individuals to enter into a contractual relationship with a private insurance company, takes congressional power and control to a striking new level. Its defenders have struggled to justify the mandate by analogizing it to existing federal laws and court decisions, but their efforts do not withstand serious scrutiny. An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented-- not just in scope but in kind--and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents."

The authors wade through all the arguments and cases and come to the conclusion that the federal government does not have the constitutional right to require that residents of the US have to purchase a good or service under either the commerce clause or with the limited federal police powers. Also, the taxes levied in the proposed bills are unconstitutional, because they are not proportional by state (that is, if a state has 5% of the population, it should pay 5% of the taxes). The constitution exempts only income taxes from that requirement.

The article makes it clear that the argument that the current health care legislation proposals are just like auto insurance is wrong. First, states have police powers that the federal government does not have. Second, the requirement is that people who want to drive on state owned roads must have licenses and liability insurance to protect the other drivers. It is not a requirement that everyone purchase insurance.

One would hope that some legislators take seriously their oaths to defend and protect the constitution by voting against the legislation. That is unlikely, however. The most likely course is through the courts if the legislation is passed.