The individual mandate is unconstitutional (Sen. Orrin Hatch)

The constitutional question is whether any of these
enumerated powers authorize Congress to require that individuals purchase health
insurance or pay a fine. The only potential candidates are the power to tax and
the power to regulate interstate commerce. Last year, to get the legislation
passed, liberals denied that the fine is a tax and made sure that the law calls
it a “penalty” and exempts those failing to pay it from the punishment that
applies to tax evaders. But today, to defend the legislation in court, the
Obama administration argues that the penalty is a tax after all. Judge Hudson
called this disingenuous argument “a transparent afterthought” and no court has
agreed with it; some have declined to address it at all.

The only enumerated power that anyone seriously argues can
justify the insurance mandate is the power to regulate interstate commerce. The
Constitution gives Congress the power to regulate interstate “commerce,” which
the Supreme Court in 1824 defined in terms of commercial and related activity. In
the 1930s, the Supreme Court expanded this category to include activities that
substantially affect interstate commerce. Every commerce clause case ever
decided by the Supreme Court, or by any federal appeals court for that matter,
has involved an activity in which individuals chose to engage.

The Obamacare insurance mandate is not in this category at
all. Rather than regulating activity in which individuals choose to engage,
Obamacare regulates the decision itself. Rather than a person’s choice
triggering the regulation, Obamacare make the choice for them. Even the first
judge to uphold the insurance mandate called this “an issue of first impression”
and distinguished between economic activity and economic decisions. Before
Judge Hudson, the Obama administration argued that “economic decisions” are “economic
actions” that can be regulated. Reacting to Judge Hudson’s ruling, Stephanie
Cutter wrote on the White House blog that the law seeks to regulate “economic
decision making.”

The trick is that the courts measure whether an activity
affects commerce by looking not only at the individual challenging the
regulation, but at the effect of everyone engaging in that activity. The Obama
administration today makes the same argument for regulating everyone’s economic
decisions. Every economic decision will, practically by definition, affect
commerce if everyone makes it. That is a recipe for virtually unlimited federal
power. If the federal government can require you to make certain economic
decisions, including purchasing certain goods or services, what can’t the
federal government do?

The Supreme Court ultimately will decide whether the
federal government may regulate not only interstate commerce (what the
Constitution allows), or activities that substantially affect interstate
commerce (what the Supreme Court allows), but all economic decisions by
individuals (what the Obama administration wants). Judge Hudson correctly
concluded that “an individual’s personal decision to purchase-or decline to
purchase-health insurance from a private provider is beyond the historical
reach of the Commerce Clause.”

Any other conclusion requires treating the Constitution as
the servant, rather than the master, of Congress. If the Constitution means
whatever Congress wants, then it is really no Constitution at all because it
cannot impose any real limits, leaving the federal government to define its own
powers. That will be the death of liberty.


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