Tuesday, December 14, 2010

Health insurance mandate ruled unconstitutional

Ilya Shapiro explains the constitutional significance:
Today is a good day for liberty. By striking down the unprecedented requirement that Americans buy health insurance — the "individual mandate" — Judge Henry Hudson vindicated the idea that ours is a government of delegated and enumerated, and thus limited, powers.

But this should not be surprising, for the Constitution does not grant the federal government the power to force private commercial transactions.

Even if the Supreme Court has broadened the scope of Congress' authority under the Commerce Clause — it can now reach local activities that have a substantial effect on interstate commerce — never before has it allowed people to face a civil penalty for declining to buy a particular product. Hudson found therefore that the individual mandate "is neither within the letter nor the spirit of the Constitution."

Stated another way, every exercise of Congress' power to regulate interstate commerce has involved some form of action or transaction engaged in by an individual or legal entity. The government's theory — that the decision not to buy insurance is an economic one that affects interstate commerce in various ways — would, for the first time ever, permit laws commanding people to engage in economic activity.

Under such a reading, which judges in two other cases have unfortunately adopted, nobody would ever be able to plausibly claim that the Constitution limits congressional power. The federal government would then have wide authority to require that Americans engage in activities ranging from eating spinach and joining gyms (in the health care realm) to buying GM cars. Congress could tell people what to study or what job to take...

As for the oft-invoked car insurance analogy, being required to buy insurance if you choose to drive is different from having to buy it because you are alive. And it is states that impose car insurance mandates, under their general police powers — which the federal government lacks. ...

As Hudson said, "Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds. Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers."

1 comment:

  1. What about automobile insurance? I do believe I am required to have it in order to drive. Seeing as health care cannot be refused to me should I end up in the emergency room, should I not then be required to have some sort of health insurance? Unemployment insurance? Medicare? Social Security? What then about these?

    The single biggest cognitive error made by people is thinking that if a some is good, more must be better. If some aspirin is good, a lot of aspirin must be great. If some personal freedom is good, total personal freedom must be excellent. If some free enterprise is good, complete free enterprise must be excellent. This is the thinking of a child and the small minded.