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Op-ed Placement

    Obama's Mandate Vs. The Founders'

    BY Matt Kibbe
    01/07/2011
    by Matt Kibbe on 1/4/11.

    On Dec. 13 a federal judge in Virginia declared the individual mandate in President Barack Obama's health care law to be unconstitutional. That mandate--section 1501 of the Patient Protection and Affordable Care Act--requires all U.S. citizens, beginning on Jan. 1, 2014, to either purchase health insurance or pay a fine to the IRS.

    While this provision has justly been described as the "linchpin" of ObamaCare--the government takeover of health care can't succeed without it--there is one problem: As Judge Henry Hudson points out, it is beyond Congress' powers to enact.

    Now here is a resounding and heartening blow for limited government. If, as all school children are taught, ours is a government of "enumerated" powers, then by definition Congress may only assert powers the Constitution specifically grants it. But--surprise!--there is no enumerated power to make people buy a private product.

    Let's see if we can follow the mental gymnastics employed Democrats to defend the constitutionality of their reform. In jamming the bill through Congress they argued that the Commerce Clause authorizes Congress to "regulate commerce … among the several States," that health care is a form of commerce and that (under the Supreme Court's broad and disturbing reading of the clause) Congress may regulate any activity that "affects" commerce. And since some people's choice not to buy insurance "affects" other people's health care costs, well, obviously the mandate is constitutional!

    Hmm.

    Perhaps sensing the tenuousness of this argument, the Obama administration's own lawyers have switched to arguing that the mandate is authorized under Congress' power to "lay and collect Taxes."

    Judge Hudson neatly rebuffs both arguments: "A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or [the Tax] Clause to encompass regulation of a person's decision not to purchase a product." Ergo, the mandate finds no support in the Constitution and must fall.

    This is good legal reasoning, but frankly it doesn't go far enough. Suppose that some rogue federal court had upheld a power to impose an ObamaCare-style mandate. Would that make it constitutional? Not if it violates the very purpose of the Constitution.

    To understand that purpose we need to go beyond Judge Hudson's helpful review of case law, to the words of the Founders themselves. Many of the same men who drafted the Constitution also helped draft the Declaration of Independence, the first law in our statute books. The immortal second paragraph of that document begins

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...

    Now note four key claims made here. First, individual rights pre-exist the establishment of any government and are thus "unalienable." (No government can justly take them away.) Second, unalienable rights are universal. (They belong to all men, everywhere.) Third, one of our unalienable rights is a right to liberty. (Because all men are created equal, no man may justly rule any other man without that other's consent.) Fourth and finally, free men consent to government solely to protect these rights. (Governments have no rights. They get whatever authority they have from the consent of the governed--and that consent, when abused, can be withdrawn.)

    This is a radical doctrine and a wonderful stumbling block to would-be oppressors.

    In constructing the Constitution as they did, the Founders were simply putting this powerful reasoning into practical effect. They were trying to create a federal government strong enough to protect our unalienable rights yet constrained enough not to violate them.

    What does all of this tell us about Obama's mandate? It tells us it's unconstitutional in principle because it contradicts the very purpose of our Constitution, which is to protect our unalienable right to liberty. Some might say, "Surely the mandate must have at least one justification under at least one enumerated power of the Constitution." Well, actually, no. As the good judge reminds us, no federal court has ever found so.

    And God willing, no court ever will. To do so would be to remove any pretense of limits on federal power. If, as the administration argues, simply being alive and liable to illness "affects" commerce enough to authorize direct federal control of private economic choices, then federal authority is essentially unlimited and the Founders' careful enumeration of powers was a waste of time.

    To be sure, our health care system needs reforms. But those reforms must be constitutional. Obama's mandate violates the mandate laid out by the Founders, and it must go.

    Matt Kibbe is president and CEO of FreedomWorks, a nationwide grassroots organization fighting for lower taxes, less government and freedom, and the author of Give Us Liberty: A Tea Party Manifesto.