Individual mandate insurance is unconstitutional


The Senate Finance Committee-passed health care bill includes an “individual mandate” that Americans must buy an insurance policy or pay a fine, an approach that tracks President Barack Obama’s health care proposals. But if enacted into law, this mandate would be glaringly unconstitutional.

That’s because those refusing to get insurance would be subject to a fine, and refusing to pay would be a misdemeanor crime, punishable by another fine or even jail time.

States wield what is called police power: the authority to make laws for the health, safety and morality of their people. The federal government, on the other hand, has limited jurisdiction. If the Constitution does not grant a specific power to the federal government, then the 10th Amendment reserves it to the states or the people.

Plenty of constitutional provisions grant powers to the federal government. For example, most that involve conditions on persons receiving federal money come from the Tax and Spending Clause. Many of the rest come from the Commerce Clause, which empowers Congress to regulate interstate commerce.

But, as other lawyers have correctly noted, there is no constitutional basis for the individual mandate. People who decline coverage are not receiving federal money, so that mandate can’t fall under the spending part of the Tax and Spending Clause.

It also cannot be a tax. The federal government can levy only certain kinds of taxes. Article I of the Constitution authorizes excise and capitation taxes, and the 16th Amendment created the income tax.

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