The Spectacle Blog
Below is the memo Quin linked to in its entirety.
MEMO FOR THE MOVEMENT:
The Individual Mandate in "Obamacare" is Unconstitutional
RE: The mandate under the Obama-Pelosi-Reid healthcare legislation requiring American citizens to purchase health insurance violates the U.S. Constitution.
ACTION: We urge you to make this point to members of the U.S. Senate-and if a bill passes the Senate to impress upon members of both chambers of Congress-that the key provision in the healthcare legislation violates the U.S. Constitution.
ISSUE: Mandating that individuals must obtain health insurance, and imposing any penalty-civil or criminal-on any private citizen for not purchasing health insurance is not authorized by any provision of the U.S. Constitution. As such, it is unconstitutional, and should not survive a court challenge on that issue. Supporters of the legislation have incorrectly contended that the legal justification for the mandate is authorized by the Commerce Clause, the General Welfare Clause, or the Taxing and Spending Clause. Given that this mandate provision is essential to Obamacare; its unconstitutionality renders the entire program untenable.
* The individual mandate is unconstitutional unless there is a specific constitutional provision that authorizes it. The federal government is a government of limited jurisdiction. It has only enumerated powers. Therefore unless a specific provision of the Constitution empowers a particular law, then that law is unconstitutional. There is no such authorization for the mandate.
* The individual mandate is not authorized by the Commerce Clause. Most of those advocating the Democrats' bill say that Congress can pass this legislation pursuant to its power to regulate interstate commerce. That argument is incorrect, because there is no interstate commerce when private citizens do not purchase health insurance.
· The Commerce Clause only covers matters where citizens engage in economic activity. The last time the Supreme Court struck down a law for violating the Commerce Clause, in United States v. Morrison (2000), the Court did so on the grounds that the activity in question was not an economic activity.
· The Commerce Clause only extends to persons or organizations voluntarily engaging in commercial activity. Government can only regulate economic action; it cannot coerce action on the part of private citizens who do not wish to participate in commerce. In the most expansive case for Congress' power to regulate interstate commerce, Wickard v. Filburn (1942), the Court upheld the agricultural regulation in question against a wheat farmer who earned his entire living from growing and selling wheat, making him a willing participant in interstate commerce.
· The Commerce Clause requires an actual economic effect, not merely a congressional finding of an economic effect. When the Court struck down the Violence Against Women Act in United States v. Morrison (2000), the Court noted that although the statute made numerous findings regarding the link between such violence and interstate commerce, it held that those findings did not actually establish an economic effect. Therefore the various interstate-commerce findings in the Senate version of the "Obamacare" legislation do not make the bill constitutional.
· The individual mandate is not authorized under the General Welfare Clause. The Supreme Court made clear in United States v. Butler (1936) and Helvering v. Davis (1937) that the General Welfare Clause only applies to congressional spending. It applies to money going out from the government; it does not confer or concern any government power to take in money, such as would happen with the individual mandate. Therefore the mandate is outside the scope of the General Welfare Clause.
· The individual mandate is not authorized under the Taxing and Spending Clause or Income Tax. The Constitution only allows certain types of taxation from the federal government.
· The Article I Taxing and Spending Clause permits duties, imposts, excises and capitation taxes -- duties, imposts and excises are taxes on purchases. A capitation tax is a tax that every person must pay, and the Constitution's apportionment rule requires that every person in each state must pay exactly the same amount. The Obamacare mandate is imposed on people who are making no purchase, and is a tax that some people in a state would pay, but others do not.
· The Sixteenth Amendment allows an income tax. An income tax is imposed only on earnings, but people would have to pay this tax even if they had no income.
Therefore it cannot be any of these constitutionally-permitted taxes.
· The individual mandate is unconstitutional regardless of whether there are criminal penalties involved. There is no distinction between criminal and civil penalties for determining the constitutionality of legislation, and the penalty imposed in Wickard v. Filburn (1942) was not a criminal penalty. Therefore even if the criminal sanctions were removed from the legislation, the imposition of any penalty or consequence for not purchasing insurance renders the mandate unconstitutional.
· The individual mandate cannot be properly compared to requiring auto insurance. President Obama said in a Nov. 9 interview on ABC television that requiring people to buy health insurance and penalizing those that do not buy is acceptable because people are required to buy car insurance. That statement is untrue.
· Only state governments can require people to get car insurance. While the federal government is limited to the powers enumerated in the Constitution, the states have a general police power. The police power enables state governments to pass laws for public safety and public health. The federal government has no general police power, and therefore could not require car insurance.
· States do not require people to purchase car insurance. Driving a car is a privilege, not a right. States require people to get insurance only as a condition for those people who voluntarily choose to drive on the public roads. If a person chooses to use public transportation, or use a bicycle instead of a car, or operate a car only on their own property, they are not required to have car insurance, and cannot be penalized for lacking insurance.
FOR ADDITIONAL INFORMATION ON THE UNCONSTIUTIONALITY OF THE HEALTH CARE MANDATE, PLEASE VISIT THESE WEBSITES:
http://www.washingtonpost.com/wpdyn/content/article/2009/08/21/AR2009082103033.html
http://www.politico.com/news/stories/1009/28463.html
http://www.politico.com/news/stories/1009/28620.html
http://www.politico.com/news/stories/1009/28787.html
http://www.foxnews.com/opinion/2009/10/30/ken-klukowski-open-letter-pelosi-gibbs-constitution-individual-mandate/
http://www.washingtontimes.com/news/2009/nov/02/beware-the-health-insurance-police/
http://www.heritage.org/Research/LegalIssues/lm0049.cfm
http://blogs.abcnews.com/politicalpunch/2009/11/interview-with-the-president-jail-time-for-those-without-health-care-insurance.html
http://hatch.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=7a758af3-1b78-be3e-e03a-c0eea6d515c5
Edwin Meese, former Attorney General
Steven G. Calabresi, Professor, Northwestern Law School
Mathew D. Staver, Founder & Chairman, Liberty Counsel
Curt Levey, Executive Director, Committee for Justice
Marion Edwyn Harrison, Past President, Free Congress Foundation
Kenneth Klukowski, Senior Legal Analyst, American Civil Rights Union
Wendy Wright, President, Concerned Women for America
J. Kenneth Blackwell, Visiting Professor, Liberty School of Law
Grover Norquist, President, Americans for Tax Reform
William Wilson, President, Americans for Limited Government
Matt Kibbe, President, FreedomWorks
Jim Martin, President, 60 Plus Association
David McIntosh, former Member of Congress, Indiana
Colin A. Hanna, President, Let Freedom Ring
Tony Perkins, President, Family Research Council
Brent Bozell, President, Media Research Center
Brian McManus, Council for Affordable Health Insurance
Karen Kerrigan, President, Small Business & Entrepreneurship Council
T. Kenneth Cribb, former Counselor to the U.S. Attorney General
Richard Viguerie, Chairman, ConservativeHQ.com
Alfred Regnery, Publisher, American Spectator
All organizations are listed for identification purposes only.
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dovebril22| 12.22.09 @ 1:31AM
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Liberal Reader| 12.22.09 @ 1:50AM
Mr Hillyer
Laws need not be "authorized" by "provisions" in the Constitution. The Constitution is not a guide to what specific legislation can be passed. It is a broad outline of the government's powers.
In fact, there is nothing in the Constitution that precludes the government from mandating health insurance.
ds80| 12.22.09 @ 9:31AM
Excellent lesson on the Constitution, Mr Hillyer.
Except to the invincibly ignorant, like "Liberal Reader".
Dan Cook| 3.16.10 @ 11:51PM
Actually Massachusetts already has an individual mandate that has already been under court scrutiny. Liberal Reader is correct. The US Constitution is not limited to specific legislation. Congress already has the power under the commerce clause to regulate any commerce that affects the national economy. As for the Healthcare tax/penalty the IRS has the power to do that. This is just last ditch attempts to derail but suprise, this has already been gone over months ago.
Lazy Jack| 12.22.09 @ 9:38AM
Amendment X (Bill of Rights)
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The constitution (See section 8) does not allow for the creation of a mandatory poll tax or mandatory expense to fund the redistribution of income for healthcare. Amendment ten reinforces this by investing those powers in the states. The failures in Massachusetts and Maine, for example, are primers on how not to do it on any level. Not only is the current legislation unconstitutional, it is plagiarism not of the great works, but of dime store fiction.
But, do not let the facts get in the way of anyone’s argument.
Lazy Jack
www.thanksforthelaughs.wordpress.com
Lazy Jack| 12.22.09 @ 9:52AM
Correction,
Ammendment X does not invest specifically powers to poll tax or redistribute wealth. It invests all other powers in the states, and explicitly states that the federal government has no business being in any of them.
Sorry if that was unclear. Still a bit Jet Lagged.
Lazy Jack
kathymm| 12.25.09 @ 12:08PM
why wait til more elections?
THE WHITE HOUSE TELEPHONE COMMENT LINE [202]456-1111
Impeach Obama Petition, ObamaImpeachment.org
Perez Hilton | 12.22.09 @ 10:29AM
Liberal Reader, you're a dumb bitch, okay!
shoot| 12.22.09 @ 2:08PM
"nothing in the Constitution that precludes the government from mandating health insurance. "
The ENTIRE document does just that.
The constitution was NOT written to empower and protect our government, it was written to PROTECT US FROM THEM (US= We the People)
Even obama knows this, search for obama and the constitution, find the video.
Biff Wellington| 12.22.09 @ 3:12PM
You are partially correct, as the Constitution is not, as you say, a guide to specific legislation. That would be rather silly, now wouldn't it?
One would have to argue that, as stated in the 10th amendment, the Constitution DOES limit the federal government's powers to exactly what is specified within, and nothing more.
Jeff Perren| 12.22.09 @ 3:25PM
"In fact, there is nothing in the Constitution that precludes the government from mandating health insurance."
Nothing, except the 5th and 14th amendments, and perhaps the 4th as well, along with a long line of Supreme Court cases that touch on the issue.
See Prof. Randy Barnett on Individual Mandate
Pingback| 12.22.09 @ 2:18AM
Twitter Trackbacks for The American Spectator : AmSpecBlog : Conservative Leaders Ag links to this page. Here’s an excerpt:
David Dennis| 12.22.09 @ 7:16AM
Well, Congress certainly doesn't want to see a test of the individual mandate ... they have made sure it doesn't happen by eliminating all "teeth". If you don't want to pay the tax, simply do not pay it and they will not go after you!
I must give the ultra-liberal site the Daily Kos credit for breaking this story. See Mandate not Mandatory.
DrTomVoter| 12.22.09 @ 8:18AM
How bad is a bill when libs and cons what to kill it? BAD! And LR continues to amuse me, but I refuse to feed he/she/it.
JamesJ| 12.22.09 @ 8:36AM
Liberal reader, so by your logic, the Fed Gov can compel me to only buy GM cars?
Liberals are sheep
All Hail Obama!
All Hail the State!
Am I doing it right, libreader?
kathymm| 12.25.09 @ 12:10PM
why wait til more elections?
THE WHITE HOUSE TELEPHONE COMMENT LINE [202]456-1111
Impeach Obama Petition, ObamaImpeachment.org
Pingback| 12.22.09 @ 8:50AM
Health Insurance Individual - Conservative Leaders Against the Unconstitutional Indiv links to this page. Here’s an excerpt:
Lazy Jack| 12.22.09 @ 9:44AM
Here are the results of the last experiment of this type from the sixties:
In 1960 (before Medicare) healthcare was 5.2% of GDP and government funding provided only 24% of the total expenditure. Since Medicare and Medicaid were entitled in 1965, the national health expenditure has risen to 17% of GDP. Your government would have you believe that nationalization of the healthcare system beyond the 47% controlled by government today would reduce your costs (of the $2.3 trillion spent on healthcare in 2008, approximately $1.1 trillion was funded buy the various government programs in the U.S.). The Congress would have you believe that the enactment of Medicare, Medicaid and other federal subsidies had nothing to do with the problems we face today, that they contributed nothing to the runaway cost of healthcare in this country. The President would have you believe that only if we cede more control will costs begin to rationalize. They also say the new-new program will cover everyone and reduce costs at the same time. This author might be from the sticks, but three-card monte is easy to spot.
Lazy Jack
For More:
http://thanksforthelaughs.word.....dchildren/
5sahandful| 12.22.09 @ 9:46AM
In OH, you do not need insurance if you can show a statement of financial ability to pay the minimum coverage required.
Ken (Old Texican)| 12.22.09 @ 11:08AM
WOW!
This is a bombshell folks. (sorry Am Spec, but someone needs to jump on this)
http://www.americanthinker.com.....bshel.html
Tim| 12.22.09 @ 11:09AM
Do fetuses get mandated by this bill? Just asking...
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Al Morgan| 12.22.09 @ 2:18PM
I am not paying for some inter-city drug addict to have health insurance I will quit working first and shut down my business.
Bradford Fisher| 12.22.09 @ 6:49PM
It also violates the takings clause (eminent domain). Although this is typically thought of as land, it applies to ANY property, such as money. Essentially Congress is seizing my property (not as a "tax") and using it for their own purposes (go buy insurance) without compensation. This is different from taxing everyone say, $1000 and then handing everyone $1000 of health care. The key is that the money taken isn't being "taxed" . If I can't do what I want with that first $1000, then it's no longer my money, is it?
It also violates-- amusingly enough-- substantive due process. You can't have a tax on say, "breathing" and then punish people if they breathe without paying the tax. This is a mandate on everyone for simply existing on the planet.
Finally, it violates privacy rights under Roe v. Wade, which is highly ironic. If the government cannot regulate or control abortion-- a medical procedure-- why then, can the government regulate or control access to health care in general?
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Evan Ravitz| 12.23.09 @ 6:25PM
If you're on Facebook, please join Millions against Health Care Mandates http://www.facebook.com/group.php?gid=192090888571
We refuse any "mandate" to buy health insurance from the same companies who've corrupted Congress with money taken from the sick and dying they've denied healthcare to!
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Commoner| 12.25.09 @ 2:21PM
If the government can mandate I have to buy insurance...
Why can't they mandate an end to smoking?
Smoking Causes Cancer... it should be illegal.
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kh| 12.28.09 @ 7:24PM
We already have an individual mandate. It is called Medicare tax.
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deewoo| 3.18.10 @ 2:31AM
Dan Cook,
Massachusetts is a state. The state has those powers. The commerce clause has never been used to say private citizens must purchase a private thing or go to jail.
If you want this, pass a constitutional amendment. Otherwise, the federal government can force people to buy a small house, a small car, or some other private thing as well.
Michael Worden| 3.20.10 @ 3:42PM
The Constitution also says : Congress shall make no law The Peoples Right to choose or except & be free. To mandate a law that enslaves the Legal Americans is in conflict with the US Const. under the 13 amendment which has abolished slavery & the 14 amendment which is equal protection of the law. Notwithstanding, Obama & the Dems are in violiation of their Oath of Office which holds they will uphold the law & protect the US Constitution. By, aiding & abetting illegal aliens & mandating The People of America will pay for all schooling, medical, social security & food stamps for illegal aliens. Instead of following US Constitutional Law that demands all illegal aliens will be arrested & deported & protect our borders. Whereby, Obama & the Dems mandates are in conflict with the US Constitution, Amendments & Federal Constitutional Laws enacted for the betterment of Society as a whole.
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