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Press Release

FreedomWorks to House of Representatives: Individual Mandate Unconstitutional

Dear Representative,

On behalf of hundreds of thousands of FreedomWorks members nationwide, I urge you to cosponsor Rep. John Sullivan’s (R-Okla.) resolution, H.Res 1063, to remove the individual mandate from all health care reform legislation.  As you know, the health care bills that are currently making their way through Congress contain provisions that require every American citizen to either secure federally regulated health insurance or risk having to pay harsh penalties.  The enactment of such a law would dramatically alter the relationship between the government and individuals.  Under such a mandate, citizens will be forced to purchase insurance simply because they exist.  Granting Congress the authority to mandate the purchase of a product not only abandons all of the limitations placed upon federal power, it would also be unconstitutional.

Of the powers that the founding document vests in Congress, there are two that could be argued grant Congress the ability to mandate the purchase of insurance.  The first is the power to, “regulate commerce… among the several States,” better known as the Commerce Clause.  However, the Supreme Court has held that in order for something to be considered commerce it must at very least be an economic activity.  A mandate on health insurance forces Americans to purchase a product simply because they are alive.  Merely existing is not an economic activity and thus, Congress does not possess the authority to regulate it. 

The second power that could be argued grants Congress the ability to mandate insurance is the power to, “lay and collect taxes, duties, imposts and excises, to… provide for the… general welfare of the United States.”  It has been said that Congress could use its ability to tax and spend to motivate a majority of Americans to purchase insurance by punishing those who opt not to buy coverage with an added tax burden.  The federal government, however, does not possess such broad taxation powers.  The Constitution holds limitations on lawmakers’ ability to collect taxes.  Article I Section 8 of the Constitution grants Congress the power to collect excise and capitation taxes.  The 16th Amendment created a national income tax.  But an extra tax burden placed on individuals who choose not to purchase health insurance does not fall under any of these three categories.  An excise tax is a surcharge on a purchase but this “individual mandate tax” does not tax people for what they purchase, it taxes them for what they refuse to purchase.  A capitation tax is a tax laid equally upon every person within the same state but this individual mandate tax would only be levied upon certain citizens (those who did not buy insurance).  And an income tax is based on personal income but the mandate tax would be based upon whether or not one purchases insurance.  Furthermore, the Supreme Court has held that Congress cannot use its ability to lay taxes to pass regulations that it would otherwise be unable to pass. 
Given the fact that Congress has no Constitutional authority to force individuals to purchase health insurance, the federal mandate included in current health care reform legislation should be removed immediately.  Giving Congress the ability to force citizens to buy a certain product eliminates every restraint put in place by our nation’s founders.  It imposes upon the liberties that our government was established to defend.  A mandate on insurance will fundamentally change our great nation.  America will cease to be a country made up of free people who choose their own destiny and will become a country in which the government controls the destiny of individuals.  Such a shift is unacceptable, unconscionable and a complete perversion of the liberties our founders fought and died to protect.


Matt Kibbe
President and CEO

[Click here for a pdf version of this letter]