March 27,2012

Press Contact:

Julia Lawless, Antonia Ferrier, 202.224.4515

The Individual Mandate: Unprecedented & Unconstitutional

President Obama’s unconstitutional $2.6 trillion health care law will mandate that all Americans have “minimum essential” health coverage starting in 2014.  President Obama wants this individual mandate to sound like a reasonable regulation.  The fact is, however, the arguments for this mandate are arguments for federal power without any limits, and totally at odds with the U.S. Constitution, which limits the regulatory authority of the federal government in order to protect personal liberty.  This is the first time that Congress has ever directly required individuals to purchase a particular product from a private company.

The Mandate Would Allow Congress to Regulate Mental Activity
To be constitutional, the individual mandate must be a valid exercise of Congress’ power to regulate interstate commerce.  Since the 1930s, the Supreme Court has found that “activities that substantially affect interstate commerce” are proper subjects for federal regulation.  Yet the individual mandate would regulate decisions rather than activities.  It would regulate an individual’s decision not to engage in economic activity by purchasing health insurance.  Upholding the unprecedented attempt to regulate decisions not to engage in interstate commerce, Judge Gladys Kessler of the U.S. District Court for the District of Columbia, upholding the constitutionality of the health law, wrote that the distinction between the regulation of physical activity and mental activity is one “of little significance.”
The Congressional Research Service (CRS) determined that this “is a novel issue”:  whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity.”  Ultimately, CRS concluded, “it may seem like too much of a bootstrap to force individuals into the health insurance market and then use their participation in that market to say they are engaging in commerce.”
The Mandate Eliminates Virtually All Restrictions on Federal Power
Harvard law professor Charles Fried acknowledged that the administration’s argument for the constitutionality of the mandate would allow Congress to pass a law requiring individuals to purchase healthy foods, like broccoli, in the name of lowering national health expenditures.

Even as it upheld the constitutionality of the mandate, the United States Court of Appeals for the D.C. Circuit stated that the Government “concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.”

The Mandate Is Not a Tax
The Government’s lawyers also argue that the individual mandate is a proper exercise of Congress’ power to tax.  Unfortunately, the statute refers to the mandate as a “penalty” or “penalty fee” nearly two dozen times, and never as a tax.  Moreover, the Secretary of Health and Human Services, the Acting Director of the Office of Management and Budget, and President Obama himself, have denied that the individual mandate is a tax.

Every court that has addressed the Government’s argument that the individual mandate is a legitimate exercise of Congress’ power to tax has rejected it.