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A Mandate Too Far

Why ObamaCare deserves to fall

Steve Chapman
February 3, 2011

The individual mandate in President Barack Obama's health care reform was a lightning rod for criticism long before it became law. As far back as the 2008 campaign, the idea provoked sharp complaints.

Here's one from a Democratic debate in South Carolina: "A mandate means that in some fashion, everybody will be forced to buy health insurance. ... But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can't afford it. And that's why my plan emphasizes lowering costs."

But it wasn't Hillary Clinton or John Edwards or Christopher Dodd who said that. It was Obama. He even ran ads warning that Clinton's plan "forces everyone to buy insurance, even if you can't afford it, and you pay a penalty if you don't."

Since then, he has come around to her view that a little coercion—well, more than a little—is not such a bad thing when it comes to overhauling the health insurance system. But now he has to convince the federal judiciary, which has been harder than persuading himself.

On Monday, a federal district court in Florida ruled the mandate unconstitutional and invalidated the entire law because it could not function without this requirement. Judge Roger Vinson based this verdict on the unfamiliar proposition that there are limits to how far Congress can go in bossing individual citizens around.

Not everyone shares that view. In an interview with The Washington Post, an anonymous White House official mocked the ruling as, "to put it charitably, very unconventional." Walter Dellinger, who was solicitor general under President Bill Clinton, found it "truly astonishing" to suggest that "Congress lacks the authority to regulate" health insurance.

But no one said Congress can't regulate the industry. The judge merely said Congress can't force Americans to purchase a specific product from a private business.

It's one thing for the government to set rules for people who have chosen to engage in economic activity. It's another to dictate to people who have chosen not to.

"It would be a radical departure from existing case law," wrote Vinson, "to hold that Congress can regulate inactivity under the Commerce Clause." Before the law was passed, even a neutral arbiter like the Congressional Budget Office said the mandate was "unprecedented."

Unprecedented it is—and, if allowed, an important precedent for future lawmakers. Vinson noted that Erwin Chemerinsky, a prominent liberal law professor at the University of California at Irvine, has asserted that Congress could not only force Americans to buy health insurance but also to purchase cars—say, to bolster a vital industry and preserve jobs during a recession.

Chemerinsky acknowledged that a law requiring Americans to eat certain vegetables "might"—might!—infringe on constitutional liberties. But you would not be taking a huge leap to surmise that if and when Congress sees reason to enact such a law, plenty of legal thinkers will argue that the Constitution allows it.

Dellinger denounced this decision will be overturned because it has such "radical implications." But how radical can it be to say that Congress may not do something that, since 1789, it has never wanted to do?

Nor would the ruling exactly put the federal government into a straitjacket. Writes Jonathan Adler, a law professor at Case Western Reserve University, "It is hard to see how a holding that would only prohibit a single federal enactment adopted in the nation's 200-plus-year history constitutes a 'major limit' on federal power." In fact, this decision probably would not affect anything else Washington currently does.

It wouldn't even prevent ambitious, expensive efforts to extend health insurance to everyone. The administration is free to offer more generous subsidies. It could limit future access for those who decline coverage. It could repeal the federal law requiring hospitals to provide emergency care to all, insured or not.

Would those options be as cheap or simple as compelling every American to buy coverage? Maybe not, which is why the mandate is so appealing to the president and his allies. But the nation's founders deliberately chose to prevent the government from doing certain things that may be efficient, attractive and even popular.

In considering this unprecedented intrusion, the courts had to choose between erring on the side of granting the government too little power or too much. Under the philosophy of our Constitution, it's not a hard choice.

COPYRIGHT 2011 CREATORS SYNDICATE, INC.



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