Health Care and the U.S. Constitution
Health Care and the U.S. Constitution
Written By David E. Smith   |   12.27.09

Reading Time: 2 minutes

Federal Issue

We’ve been hearing a great deal about federal health care “reform” over the last few months. Certainly one of the most troubling parts of this big-government bill is that the U.S. Senate version would allow the use of federal taxpayer dollars to subsidize abortions.

But, in addition to containing many economically damaging provisions, to say nothing of the moral outrage of federally funding abortions (and possibly sex change operations), this health care “reform” push by the liberal leaders in Congress may very well be unconstitutional.

The Cato Institute, a libertarian think-tank, recently published an article drawing attention to a few major constitutional issues with this legislation. The crux of the problem is the bill’s “individual mandate,” not the notorious “public option.”

The “individual mandate” requires Americans to purchase health insurance under penalty of law. Yes, you heard that right. Congress is getting ready to pass a health care “reform” bill that would require you and me to purchase a consumer product.

Senate Majority Leader Harry Reid (D-NV) and his colleagues are trying to use Congress’ legitimate constitutional power to regulate interstate commerce to pass the individual mandate. The problem is, however, the McCarran-Ferguson Act of 1945 gives states the absolute authority to regulate health insurance.

That’s why we cannot purchase health insurance across state lines — it’s a federal law — therefore, no interstate commerce of health insurance. And that means Congress does not have the constitutional power to regulate health insurance… let alone mandate that Americans have to purchase health insurance.

There is more — the bill also creates an unconstitutional tax to enforce the unconstitutional individual mandate. Those who do not purchase health insurance will be subject to a penalty tax.

The U.S. Constitution prohibits Congress from creating a “direct tax” unless the tax is apportioned among the states according to their population, as determined by census. The proposed tax is not an income tax, because it is not based on income. It’s not an excise tax because the tax is not based on the value of the health insurance policies purchased.

This tax is a “fixed amount based on family size,” which essentially means the tax is levied “per person” — a direct tax. It is therefore, unconstitutional. So not only would you be mandated to purchase health insurance, you’d be punished with an unconstitutional tax as the penalty for disobeying the mandate!

And, according to the Cato Institute, this bill would create perhaps the only criminal offense in our nation’s history that can be committed only by people in a certain income level, because those living below the poverty line are exempt from the mandate.

Thanks to in part to the Tea Party movements and the Town Hall meetings this past summer and fall, the White House has not been able to ramrod this legislation through Congress as President Barack Obama fully expected to do earlier this year. However, it’s going to take a continued, unified grassroots effort to defeat, at the very least, the most offensive parts of this bill, including the abortion funding and the individual mandate. However, nothing less than our constitution and very Republic are at stake.

David  E. Smith
Dave Smith is the executive director of Illinois Family Institute (501c3) and Illinois Family Action (501c4). David has 30 years of experience in public policy and grass-roots activism that includes...
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