The Individual Mandate and the Constitution

Criticism has rightfully emerged that an individual mandate (requiring individuals to purchase health-care insurance) contained in health-care “reform” legislation could violate the U.S. Constitution. Speaker of the House Nancy Pelosi has sought to take that claim to task by attempting to debunk it on her Web site.

The fact-checking page, in summary, basically claims that since the courts have construed the Commerce Clause to allow Congress to regulate virtually anything that affects interstate commerce, it is well within its authority to mandate that individuals obtain health coverage. In an astonishing claim, the site asserts the following:

But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. … Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.

Am I to assume from this dubious piece of constitutional interpretation that Congress has the power to regulate every decision an individual makes in terms of their health care? The statement certainly implies that.

Accepting the premise that what the courts say about the Constitution is the final word will lead to such problematic and worrisome conclusions. The Commerce Clause, in Article 1, Section 8 of the Constitution, gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The clear wording and intent in the pertinent part of this sentence was to give Congress the authority to regulate commercial transactions between residents of different states, chiefly to avoid protectionism — one state playing favorites with goods produced in its territory.

Judge Andrew Napolitano noted the following concerning the Commerce Clause:

[James] Madison’s understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept ‘regular.’

But the courts and Congress have, over time, slowly expanded the power of the federal government in the realm of commerce. This distortion of the intent of the founders has led us to the point where Pelosi’s site can assert that the power of Congress to meddle with anything affecting commerce in many cases can be viewed as “essentially unlimited.”

But many politicians are only interested in sticking to the original intent of the Constitution when it serves their particular interests. Thus grows the power of the state — causing the freedom of the individual (something chiefly protected by the Constitution) to shrink.

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8 Responses to The Individual Mandate and the Constitution

  1. […] the Judge on the Constitutionality of the Individual Mandate By Adam Fowler To add more to my previous post on the constitutionality of an individual health-insurance mandate, here’s a clip from Judge […]

  2. […] when it involves one or more states. There’s that pesky Constitution getting in the way again. That seems to be the attitude of many politicians seeking the enlargement of […]

  3. […] Government paternalism has led to the point where politicians now think it is OK to force people into purchasing something they do not want. Forget the Constitution. […]

  4. […] The Individual Mandate and the Constitution […]

  5. […] Note: For more information on the individual mandate, consult my previous posts here, here and here. Possibly related posts: (automatically generated)More From the Judge on the […]

  6. […] “Everyone will have to have health insurance or pay a fine, a requirement known as the individual mandate.” This is also true. Leaving the paternalism in such a mandate aside, there is also a strong argument that it is unconstitutional. […]

  7. […] The most important form of litigation, of course, should be challenging the constitutionality of the bill. Besides its uncomfortable level of paternalism, “Obamacare” is in truth unconstitutional in several aspects – particularly the individual mandate. […]

  8. […] The Individual Mandate and the Constitution […]

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