Posted by
Always To The Right on Saturday, August 22, 2009 3:51:22 PM
One of the more troubling components of the ObamaCare bill wending its
way through the House is the inclusion of individual mandates to carry
health insurance. What gives Congress the power to dictate that choice
to American citizens? A single document enumerates Congressional
power, and former Department of Justice attorneys David Rivkin and Lee
Casey have some trouble finding that power in it. They argue, with
appropriate citations of precedent, that HR3200 and any other bill that
attempts to impose mandates will violate the Constitution
Most states now require drivers to have auto insurance before
issuing drivers licenses, car registrations, or both. However, that
doesn’t apply here for three reasons. First, that power rests with the
individual states, as they are the licensing authorities and not the
federal government. Second, driving is not a right but a privilege,
which gives access to state-owned roads in exchange for a demonstration
of competence and appropriate safety and insurance preparation, so the
state can and does set conditions on that privilege (too many, but
that’s an argument for another day). Third, because the insurance is
conditioned on that privilege, it only affects a portion of the
populace. The states could not demand universal auto insurance on
every man, woman, and child in their state.
But how about using the tax code to enforce the mandate? Congress has the power to tax, as we know all too well, and they can create some severe penalties for failure to comply. In fact, HR3200 does just that
now. However, as Rivkin and Casey explain, any tax that seeks to
impose policy that goes beyond the limits of the Commerce Clause is
also unconstitutional