It’s pretty clear to most folks who pay even a little attention to freedom, individual liberty, and other good things that an insurance mandate may run afoul of a little thing many of us miss called the Constitution. Numerous activists have called asking about this, more have commented through the website, and all of us know that, should ObamaCare pass, there will definitely be a constitutional challenge.
First, I’d like to assure all those who are wondering that FreedomWorks is indeed looking at every angle to stop this anathema – in Congress, in the courts, in the states – whatever it takes.
Second, the Wall Street Journal has a really well written account of the constitutional problems with ObamaCare with some good historical context thrown in on the side.
Since the New Deal era, the Supreme Court has broadly interpreted congressional authority under the Commerce Clause. Congress has successfully invoked that power to limit the amount of wheat farmers can grow, ban racial discrimination at restaurants and prosecute medical patients for raising marijuana to alleviate their symptoms.
But the court has never considered a federal program structured like the health overhaul, which would require people without insurance to buy it or face a tax or penalty. The nonpartisan Congressional Research Service said in July that it was a “challenging question” whether the commerce power extends that far.
Democrats and their allies say that despite its novelty, the insurance mandate falls within the definition of interstate commerce. The Senate bill cites data to show the importance of the health-care industry to the national economy and the damage caused by leaving millions of Americans uninsured.
Requiring the uninsured to buy coverage will “create economies of scale” and “is essential to creating effective health-insurance markets,” the bill says.
Republicans argue that while Congress can regulate economic activity, the failure to buy insurance amounts to inactivity — and the Constitution doesn’t give Congress power to regulate that.
Third, and finally, be sure to check our Issue Developments for the latest state of play and good commentary from around the web.
FreedomWorks Letter to Congress in Support of Fiscal Commision Act (H.R. 5779)