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Category: Articles; Obamacare

Why a Federal Health-Insurance Mandate Is Unconstitutional?
By Institute for Health Freedom
January 14, 2010


As Congress began reconciling the House and Senate health “reform” bills, legal scholars and pundits were debating the constitutionality of the individual insurance mandate included in both bills. Advocates of the mandate say Congress has the power to require the purchase of insurance under the Constitution’s Commerce Clause.

But Sheldon H. Laskin, an attorney and adjunct professor of law at the University of Baltimore's Graduate Tax Program, says for that to be true, “the purchase of health insurance must constitute ‘commerce’ within the meaning of the Commerce Clause. It does not.”

He explained:

“In 1982, the Supreme Court declared that, in order for a commodity to be considered an article in commerce, it must be capable of being sold. Sporhase v. Nebraska, 458 U.S. 941 at 949 – 950 (1982). While there is no doubt that the sale of health insurance by an insurer constitutes commerce, it does not follow that the purchase – or more precisely, the failure to purchase – health insurance by a consumer also constitutes commerce. Health insurance, once purchased by a consumer, is not capable of being further sold in commerce because there is no market for it; who would purchase a health insurance policy naming someone else as the insured?” [Emphasis added.]

Professor Laskin also addressed previous Supreme Court rulings permitting the feds to regulate wheat and marijuana under the Commerce Clause: “Unlike wheat or marijuana, health insurance is not a fungible commodity and is therefore not marketable. Again, no one would purchase my health insurance – it is personal to me and cannot be sold for any price.”

Moreover, Laskin refutes arguments comparing a federal health-insurance mandate to state automobile-insurance mandates: “Driving is a privilege, and the states are free to impose any reasonable condition on the exercise of that privilege that they choose. In any event, the states have limited the auto insurance requirement to the purchase of liability insurance to cover injuries sustained by third parties. No state requires drivers to purchase insurance to cover their own injuries.” [Emphasis added.]

Meanwhile, attorney Kent Masterson Brown, writing for the Washington Legal Foundation, anticipates that “The courts would strike down any mandate Congress enacts that directs individuals to purchase health insurance or be subject to fines or imprisonment. Such a mandate is an unconstitutional exercise of congressional power under Article I, Section 8, and an invasion of those express and implied powers retained by the States and those rights otherwise retained by the people. To do otherwise would allow Congress to undo more than two hundred and twenty years of Constitutional jurisprudence.”

Finally, progressive commentator David Swanson sums up the issue this way: “So, the constitutional question, for those who still care whether laws are constitutional, is whether the power to force you to buy a horrible product you do not want from a disreputable monopolistic corporation that pays regular bribes to your elected representatives in the form of campaign ‘contributions’ is specifically listed anywhere in Article I.” He concludes, “Ultimately, the question is whether we will stand for fascistic policies or fascistic interpretations of the Constitution. Personally, I will not stand for either.”

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