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The Power To Mandate Health Insurance Is the Power To Mandate Almost Anything ^ | August 17, 2011 | Jacob Sullum

Posted on 08/17/2011 8:24:03 AM PDT by Kaslin

Opponents of the federal law requiring Americans to buy government-approved medical coverage face a daunting challenge. Because the U.S. Supreme Court has treated the power to "regulate Commerce ... among the several States" like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think.

But as last Friday's decision by the U.S. Court of Appeals for the 11th Circuit illustrated, the law's defenders have a corresponding problem. Because a limitless "commerce clause" contradicts a fundamental constitutional principle, they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far, they have been unable to do so, which is the main reason the appeals court rejected this "wholly novel and potentially unbounded assertion of congressional authority."

Under our system of government, the 11th Circuit noted, Congress has only those powers that are explicitly enumerated in the Constitution, with the rest "reserved to the States respectively, or to the people" (as the 10th Amendment puts it). An all-encompassing commerce clause that authorizes any mandate, restriction or prohibition aimed at behavior that might affect interstate commerce (subject to specific limits, such as those imposed by the Bill of Rights) is plainly inconsistent with this federal system.

The Obama administration, therefore, needs to explain why its constitutional rationale for the health insurance mandate -- that the failure to obtain medical coverage, in the aggregate, has a "substantial effect" on interstate commerce -- does not amount to such an open-ended license. Toward that end, the administration argues that health care is unique because it is expensive, everyone needs it at some point yet cannot confidently predict when, and federal law requires hospitals to treat people regardless of their ability to pay, which shifts costs to others.

As the 11th Circuit noted, however, "virtually all forms of insurance entail decisions about timing and planning for unpredictable events with high associated costs." Based on the administration's criteria, "there is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks," including natural disasters, accidental death, theft, business interruption, disability, long-term nursing care and burial costs.

More importantly, the distinguishing characteristics cited by the government have no basis in the Constitution or in the Supreme Court's commerce clause precedents. "They are not limiting principles," the appeals court said. "Rather, they are ad hoc factors that -- fortuitously -- happen to apply to the health insurance and health care industries."

These factors may help explain why Congress wants to make people buy health insurance, but they do not explain why it has the authority to do so. And if the Supreme Court ultimately upholds the unprecedented policy of mandating purchases in the name of regulating interstate commerce, future Congresses could decide there are sound reasons to make people buy other forms of insurance (to prevent cost shifting), exercise equipment (to reduce health care costs), double-pane windows (to conserve energy) and American cars (to stimulate the economy and support domestic manufacturers).

"Every day," the 11th Circuit observed, "Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children's education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes."

Given the potential for wide-ranging controls over heretofore private decisions, you can see why this debate is not simply about arcane legal doctrines or arbitrary distinctions between state and federal powers. "While these structural limitations are often discussed in terms of federalism," the appeals court noted, "their ultimate goal is the protection of individual liberty."

By increasing the federal government's role in medicine, President Obama's health care reforms directly limit freedom. But the legal arguments he is using to defend them may turn out to be a much bigger threat.

TOPICS: Culture/Society; Editorial; Front Page News; Government
KEYWORDS: healthinsurance; obama; obamacare; socialism; tyranny

1 posted on 08/17/2011 8:24:05 AM PDT by Kaslin
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To: Kaslin
My guess is that the Supreme Court is afraid of doing anything until after the election.....this august body does not follow our Constitution....they follow loosely woven laws from less than bright courts and those decisions around the country.
2 posted on 08/17/2011 8:31:33 AM PDT by yoe
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To: Kaslin

If the individual mandate stands, why not solve the recession by requiring everyone to buy new houses. Think of how many construction jobs would be needed if all 300M people had to buy 1-2 new houses per year....

3 posted on 08/17/2011 8:36:03 AM PDT by TennesseeProfessor
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To: TennesseeProfessor

If you cannot afford it, then your Sugar Uncle will step in and pay for it for you using the money taxed from others. I think you may have a good point here. It will be the next government takeover. Every day your liberties are being eroded a little more. Soon you will have none, and you will find yourself sitting in communist US with a government provided everything. One of the biggest problems I see with this country is that we have lost our pride. Pride in ownership, pride in doing a good job, pride in ourselves. Since the days of Reagan, we have been sliding and the pace has been accelerated to light speed under the current administration. The giant sucking sound now is a result of everyone wanting someone else to take care of them. As long as the cell phone works and FB is still up and running, life is good. Totally pathetic what we have become as a nation.

4 posted on 08/17/2011 8:49:54 AM PDT by toolman1401
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To: Kaslin
'...future Congresses could decide there are sound reasons to make people buy other forms of insurance (to prevent cost shifting), exercise equipment (to reduce health care costs), double-pane windows (to conserve energy) and American cars (to stimulate the economy and support domestic manufacturers)."

Anyone that cannot envision just these things happening is either simple minded or a fellow traveler.

5 posted on 08/17/2011 8:53:53 AM PDT by arkady_renko
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To: Kaslin
Thank you for posting. Now is the time to stand for the foundational principles of liberty enshrined in the 1787 Constitution.

The "Trojan horse" called "health care reform" simply was a vehicle in the goal of "transforming America" from its foundations in individual liberty to one of coercive rule by political elites--imperfect persons in positions of power in government.

America's Founders understood the latter concept well, and they soundly rejected it in favor of a written "People's" Constitution to forever limit, separate, check and balance, and "bind down" their elected and appointed representatives in government. In Article V, they provided the only valid means of amending that written Constitution. The results were astounding!

Then, along came the so-called "progressives" who, in their arrogance and lust for power and control, several decades ago began to erode those "foundations" of individual liberty. Now, led by the current Administration, "health care reform" was to lay a different and opposite foundation.

By the Founders' formula, "the People's" written Constitution was the anchor of our liberties, binding government to the "People's" limitations on its power.

The "progressives" (who are, in fact, regressive in their counterfeit ideas), in effect, would undo all the monumental work accomplished by the Founders on behalf of liberty and leave the law afloat and without anchor, relying, as of old, on mere men and women.

From Page xv of "Our Ageless Constitution," allow me to include here excerpted words from President Andrew Jackson's Proclamation of December 10, 1832:

"We have received it [the Constitution] as the work of the assembled wisdom of the nation. We have trusted to it as to the sheet anchor of our safety in the stormy times of conflict with a foreign or domestic foe. We have looked to it with sacred awe as the palladium of our liberties, and with all the solemnities of religion have pledged to each other our lives and fortunes here and our hopes of happiness hereafter in its defense and support. Were we mistaken, my countrymen, in attaching this importance to the Constitution . . .? No. We were not mistaken. The letter of this great instrument is free from this radical fault. . . . No, we did not err! . . . The sages . . . have given us a practical and, as they hoped, a permanent* Constitutional compact. . . . The Constitution is still the object of our reverence, the bond of our Union, our defense in danger, the source of our prosperity in peace: it shall descend, as we have received it, uncorrupted by sophistical construction, to our posterity. . . ."

*Underlining added for emphasis

And, it was Thomas Jefferson who used another metaphor with reference to the Constitution when he indicated that "the People" must "bind them (government) by the chains of the Constitution." In another instance, he declared: "It was intended to lace them up straitly within the enumerated powers. . . ."

6 posted on 08/17/2011 9:00:35 AM PDT by loveliberty2
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To: Kaslin

If the federal government has the legal power to make you buy an expensive health insurance policy every month for your entire life, then the federal government has the legal power to make you use your savings to buy government bonds.

7 posted on 08/17/2011 9:01:10 AM PDT by Meet the New Boss
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To: arkady_renko

They will try to go from manipulating the system to take away your choice of what to eat, to mandating that you purchase certain foods as opposed to others, to when they see you still haven’t eaten the foods they mandated you buy, to punishing you for not eating them.

They still haven’t figured how to force the mandated foods down your throat, but they’re working on it...

8 posted on 08/17/2011 10:26:09 AM PDT by txrangerette ("...HOLD TO THE TRUTH; SPEAK WITHOUT FEAR." - Glenn Beck)
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To: Kaslin


9 posted on 08/17/2011 11:30:13 AM PDT by markman46 (engage brain before using keyboard!!!)
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To: txrangerette

It will be done with Food Purchase Cards. It will be just like the FOID card Illinois gun owners must acquire to own a firearm. The cards have no monetary value, but you must present it upon the purchase of ammo or a gun. No card, no ammo or gun.

The FPC’s will link to a database that tracks all food purchased by you. Go to McDonald’s, they will ask for your FPC. Eating too much fat? You may be denied certain items from their menu. Weigh too much at your mandated checkups and you will pay increased fines - I mean rates - on your health insurance policy.

10 posted on 08/17/2011 1:10:41 PM PDT by arkady_renko
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To: arkady_renko

That is their dream, but it violates our God-given rights to life, liberty and the pursuit of happiness. The Founders are rolling in their graves at just the thought of it, much less the implementation.

As I posted, they will come up with ways to punish if we don’t do what they mandate. You outlined the ways they plan to do it.

I say, we must not allow ourselves to be herded like a bunch of livestock down that road to h*** on earth.

11 posted on 08/17/2011 1:39:27 PM PDT by txrangerette ("...HOLD TO THE TRUTH; SPEAK WITHOUT FEAR." - Glenn Beck)
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