Author Archive | Paul Opsommer

Considering all of the legal ambiguity over national healthcare, not only is such a legal challenge necessary, it was fully expected by even Congress’s most ardent supporters of national healthcare because they knew they were wading into unchartered constitutional waters from the moment they pressed the yes button. Congress may be able to tax and spend, but never before has the federal government been able to mandate that you, U.S. citizen, have to purchase a particular private good or service just because the federal government says so.

The provision is on its face unconstitutional, and it will take significant legal obfuscation to show otherwise because the simple fact is that nowhere in the Constitution is the federal Congress given such power, and the 9th and 10th Amendments clarify that the federal government may exercise only those powers granted to it by the states and the people. This is partly why car insurance laws come from the states and not the federal government, and why similar healthcare programs in Massachusetts did not violate federal law. The United States is not a “cookie-cutter country”, and it is ironic that some have criticized Cox’s lawsuit for blunting the potential number of “pilot projects” the federal government intends to test in the states when it is the federal government’s very own one size fits all approach that has trampled on those very efforts. The best way for the federal government to recognize that we do not live in a homogenous country (that is showing signs of stress under efforts to harmonize laws that lay outside of Congressional power) is to follow the tenets of federalism and let states operate in these areas on their own.

Some would advocate that in the interests of the ‘general welfare’ or ‘commerce’ that the Constitution can be interpreted as allowing this individual mandate. This is erroneous, as the general welfare clause is actually a limiting statement that does not give Congress any additional powers. And if the commerce clause can be interpreted so broadly as to allow Congress to mandate the purchase of health insurance against your will, it could also be used to mandate that you buy life insurance, a computer, or a burial plot. Such rationalization would lead to justification for the mandatory purchase of virtually anything. Congress may be able to regulate economic activity that occurs across state lines, but it cannot mandate that people must participate in such transactions.

The Supremacy Clause has also been cited as a reason to justify an individual mandate, but also misses the point. While a state cannot overturn a federal law that is clearly constitutional, this clause in no way means that any law passed by Congress is somehow automatically deemed constitutional and above reproach to the point it can not be challenged. If that was the case no federal law could ever be overturned, with such defacto thinking harkening back to Richard Nixon asserting that anything the President of the United States does is legal simply because it is the President who is doing it. We have checks and balances for a reason.

There are many valid policy issues that surround the national health care debate, but as Cox’s lawsuit shows, the U.S. Constitution is not merely an inconvenient document that can be pushed aside when it doesn’t mesh with one’s particular legislative agenda. In the case of national healthcare that relies on the unprecedented use of individual mandates, such court cases will be needed to avoid ambiguity over the legality of the governmental fines and punishments that will be imposed on those who refuse to buy health insurance. We will now see if the courts will have the courage to hear such a case, as no doubt there will be many interests waiting in the wings to see what other private goods and services the federal government can make you buy.