Wednesday, February 29, 2012

Obamacare and the Individual Mandate

On March 26th through 28th, the Supreme Court of the United States will hear oral arguments regarding the constitutionality of the Individual Mandate within the Obamacare Healthcare Reform.  This mandate requires all Americans to purchase health insurance or else pay, via the Internal Revenue Service, a tax / penalty (depending on who's making the argument) for the failure to have health insurance.

In the case taken up by the Supreme Court, the Attorney General's of 26 states filed suit against the individual mandate - and in this particular one, the lower court agreed that the mandate was both unconstitutional and inseverable from the Obamacare Healthcare Reform.  The inability to sever the mandate from the bill effectively invalidated the entire bill.  Other courts have ruled otherwise, that the mandate, under the precedent set by the Commerce Clause, was constitutional and therefore Obamacare is constitutional.

Gallup has just released a poll that shows the unpopularity of both Obamacare and the concept of the individual mandate.
72% of Americans view Obamacare individual mandate as ‘unconstitutional’… Even among Americans who support President Obama’s health care overhaul, a large majority believe that the law is out of step with the U.S. Constitution, a Gallup poll released Monday revealed.

The poll, conducted Feb. 20–21, indicates that 72 percent of Americans believe the individual mandate — the government’s requirement for Americans to purchase health insurance — is unconstitutional. Even among Americans who feel the president’s health care law is a “good thing,” 54 percent think the provision is unconstitutional.

Just 37 percent of Democrats said the individual health care mandate is constitutional. A mere 6 percent of Republicans and 21 percent of Independents agreed.

The poll question read, “As you may know, the Supreme Court will hear arguments next month concerning a requirement in the healthcare law that every American must buy health insurance or pay a fine. Regardless of whether you favor or oppose the law, do you think this requirement is constitutional or unconstitutional?”
There are many arguments that have been offered to contest the individual mandate.  The majority of these work around the limitations of the Federal government under the Constitution to project it's power towards States - particularly since the Constitution is designed to limit Federal powers and leave to the States all powers that are not expressly given to the Federal government.

The Commerce Clause, is one of the powers expressly assigned by the Constitution (Article 1, Section 8, Clause 3), to provide the Federal government with the power to "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Historically, Courts have used this clause to both provide and expand the Federal government with the authority to regulate both commerce and non-commerce on a Federal level across all states that are part of a commercial transaction.  But there have also been limits - for example in the decision to not permit marijuana grown for medical purposes in states that permit the medical use of the drug to be exported to other states as that would create challenges regarding those states anti-drug laws.

In the case of the Individual Mandate, the core question has been if the Federal government has the power to force a consumer, for the greater good, to purchase a specific product or service - in this case a health insurance policy.

The argument for stresses the importance and effect of the 'greater good'.  The argument against stresses the concerns that if health insurance is mandated for purchase, what is to stop the Federal government from mandating other products and services, like electric vehicles, for 'the greater good'?

However, Hot Air yesterday posted another argument against the Obamacare Individual Mandate that is, to me, extremely strong and compelling...
Constitutional law professor Elizabeth Price Foley, who is the executive director of the Institute’s Florida Chapter and who co-authored IJ’s brief, said, “The individual mandate violates a cardinal rule of contract law—to be enforceable, all agreements must be voluntary. The Framers understood this, and would never have given the federal government the power to force individuals into lifelong contracts of insurance. The Court should not allow the government to exercise this unprecedented and dangerous power.”

As IJ’s brief shows, the principle of mutual assent, under which both parties must consent for a contract to be valid, is a fundamental principle of contract law that was well understood during the Founding era and is still a cornerstone of contract law today. Indeed, contracts entered under duress have long been held to be invalid. Yet the mandate forces individuals to enter into contracts of insurance that would never be valid under this longstanding principle. (For a copy of IJ’s brief, visit:

If the U.S. Supreme Court fails to strike down the individual mandate, there will be nothing to stop Congress from forcing people into other contracts against their will—employment contracts or union membership, for example. If we still have a constitutional republic in which the federal government’s powers are limited, then the Court should strike down this law.

The Institute for Justice’s brief is the only amicus brief filed with the Court that examines this case in the context of the history of contract law. The brief illustrates how the Supreme Court has recognized the principle of consent in commercial relations in its Commerce Clause and Tenth Amendment cases, and it explains why the U.S. Supreme Court has a key role in acting as a check against this unconstitutional power grab by the federal government.
Obamacare regulatory requirements.  According to the Administration one complies - or in the case of the individual mandate, pay a financial penalty for non-compliance.

The individual mandate is, I strongly believe, unconstitutional.  If the SCOTUS opens the door by permitting the mandate to exist, there are few if any limits on the power of the Federal government to mandate US residents to acquire products or services 'for the greater good'.  As demonstrated by the Administration's push on the contraception mandate, religious objections are no longer sufficient to offer any protection from the demands / mandates of the Federal government.

My biggest concern is that SCOTUS might punt on this case and ruling because the individual mandate does not take effect until 2014.  Can they rule on a mandate / rule that has not yet taken effect or impacted any American?  Since the mandate is a cornerstone of the Obamacare legislation, and inseverable, where we are already subject to the regulatory effects of Obamacare, I think a ruling should be made now.  Far too often, once something is in effect, it becomes considerably harder to undo...which was one of the aims of the progressives in this legislation.

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