Somin: Healthcare's Individual Mandate Unconstitutional

The "individual mandate" for the purchase of health insurance included in the healthcare bill recently enacted by Congress is unconstitutional, says Professor Ilya Somin, and lawsuits filed by various government and private groups deserve to prevail.

Somin presents arguments that neither the Commerce Clause, the Tax and Spending Clause, nor the Necessary and Proper Clause empowers Congress to force citizens to purchase a product they do not want. Defenders of the mandate typically cite those three clauses as justification that Congress is authorized to impose the individual healthcare mandate.

Most Americans will be required to purchase health insurance that meets certain government standards beginning in 2014 or be subject to a fine of up to $695 per year.

Obamacare's Unconstitutional Individual Mandate, Human Events. com, June 21, 2010. By Ilya Somin.

"Some contend that the constitutionality of the individual mandate is justified by the Spending Clause, which gives Congress the power to impose taxes to 'pay the Debts and provide for the common Defence and general Welfare of the United States.' They claim that a mandate could be justified as a 'tax' because it imposes a financial penalty. This argument ignores the obvious distinction between a tax and a financial penalty for refusing to comply with a regulation. If the defenders of the mandate are correct, Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse.

"Even if the mandate is a 'tax,' it still can’t be justified under the Tax Clause. That provision doesn’t give Congress the power to enact any taxes it wants, but only those that 'pay the Debts and provide for the common Defence and general Welfare of the United States.'
'“general welfare' to mean virtually any purpose that Congress believes to be beneficial. This approach renders most of the rest of Congress’ constitutional powers redundant because it would enable Congress to control virtually any activity merely by imposing a financial penalty on anyone who refuses to comply. Indeed, this broad interpretation of 'general welfare' even makes the rest of the Tax Clause itself superfluous. If the words 'general welfare' give Congress the power to tax and spend for any purposes it likes, surely that includes the power to do so for purposes of providing for 'the common defence' and paying the national debt."

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