The Nation's Pulse

The Individual Mandate Slope

Next the Feds will fine you for failing to put in a rainwater harvesting system.

By 10.28.09

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Americans are used to the state forcing us to buy things. More than likely your state government forces you to purchase automobile insurance in order to operate your motorcar, just as you must buy a helmet to peddle your bicycle, mud flaps if you drive a tractor-trailer, and trigger locks for your blunderbuss. We have become used to such government mandates. Small wonder the Democrats think they can get away with forcing every American to purchase health insurance.

But until now, the federal government has been largely in the business of telling us things we cannot do. As one constitutional lawyer recently told the New York Times, besides the draft and taxes: "it's hard to think of anything else that the federal government requires you to do."

Doubtless, the federal government has a long list of things it would like to force Americans to do: get more exercise, recycle, stop smoking, turn off the Rush Limbaugh show. After all, why let state governments have all the fun? True, the role and scope of the federal government was somewhat limited by the Founding Fathers, but there are ways to get around that. In particular, there is the Commerce Clause.

The federal government has sought to regulate all kinds of wacky things using the Commerce Clause, from marijuana grown for personal medicinal use to the Gun-Free School Zones Act. The feds' right to trump state medicinal marijuana laws survived a Supreme Court challenge (Antonin Scalia explained his "let's expand federal power" vote this way: "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce"), but the gun zones act did not. Now Democrats are saying the Commerce Clause gives Congress the right to tax or fine Americans for not buying health care insurance, the so-called individual mandate. It is anybody's guess where the current Supreme Court will come down on this one.

But make no mistake, if the law is passed, it will be challenged, and hopefully on the grounds that it violates the Takings Clause of the 5th Amendment, which prohibits the government from taking private property for public use without just compensation. The government is indirectly taking your money and mandating a private purchase, or face a fine.

But the Democrats' perversion of the Commerce Clause pales to the language tricks they're using to mislead citizens. "Democrats in the House and Senate have framed the mandate as a tax provision, which might have the effect of helping the bill dodge some of the constitutional showdowns," notes the website Factcheck.org. Indeed, by calling a fine something it is not -- a tax -- Democrats are purposely misleading the American people. By simply changing the name of something, they think they can change its essential character. Democrats say a goat is a mule, therefore it is now a mule, even though it still headbutts you in the butt like a goat.

Congress, of course, has the constitutional right to tax to its heart's content. So how much will those of us who refuse to comply be fined…I mean taxed? Under a recent Senate plan, Americans who do not buy health insurance would be forced to pay a tax of up to $1,500 per year.

WRITING IN THE Wall Street Journal, David Rivkin Jr. and Lee Casey note that a "tax that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by 'taxing' anyone who doesn't follow an order of any kind."

Democrats, however, seem more interested in cutting a deal with insurance companies than in upholding the Constitution. Democrats will require insurance companies to accept persons with pre-existing conditions. Without the mandate there is no incentive to buy insurance until you get sick. The only way the insurance companies will sign on to the Democrat's plan is if young, healthy Americans are forced to buy insurance.

Democrats justify the individual mandate on the basis that uninsured persons use health care services, emergency rooms in particular, and do not pay for the services, thus the cost goes to the insured or the hospitals. But another way to look is this is by contrasting health care policy with our education policy. Doubtless some Americans could not afford schooling for their children if they had to pay for it out of their own pockets, therefore everyone -- or almost everyone -- pays through taxation. There is, obviously, no mandate that requires every individual American to pay for his child's education or face a fine. Democrats are betting that Americans would prefer the individual mandate over a tax increase, because, as noted earlier, Americans have become used to state and local government forcing us to buy things we don't necessarily want to buy.

Feel like you are standing on a slippery slope? Will Democrats first fine citizens who refuse or cannot afford to buy health insurance, and later fine citizens for failing to purchase a rainwater harvesting systems or hybrid vehicles? I would prefer not to find out.

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About the Author
Christopher Orlet writes from St. Louis.