A Mandate to Control Your Life

My current post at Freedom Correspondent.

The health care legislation pushing through the Congress mandates that all citizens must purchase health insurance. The mandate is essential to enable the reduction of insurance costs for higher risk persons, such as those with chronic conditions or the elderly, by forcing the young and healthy, who otherwise might not purchase insurance because they view it as an unnecessary cost, to purchase insurance or face fines and possible imprisonment if they do not pay the fines.

The mandate raises a critical question: Where does the federal government have the authority to force anyone to purchase a good or service? Ruth Marcus of the Washington Post today casually dismisses this constitutional liberty grounded in limited government. She relies upon the Commerce Clause and the government’s ancillary authority to tax. If she is correct, the health care legislation will not only stand as the Waterloo for the fiscal integrity of the United States, but also the death knell for the last threads of limited government and individual liberty.

I confess to being a strict constructionist insofar as constitutional interpretation is concerned. There is no doubt in my mind that the Commerce Clause was intended for the limited purpose of preventing one state from erecting barriers to trade originating in another state. Unfortunately, that has become little more than an interesting historical discussion. Marcus is correct that Supreme Court precedent, especially since the Depression, has expanded federal regulatory authority in many ways utilizing the Commerce Clause as the door. Where she is wrong, however, is extrapolating from these precedents addressing the authority of government to regulate commercial behavior the new authority to force commercial behavior.

Marcus pays lip service to this distinction. She writes:

"Granted, there is a difference between regulating an activity that an individual chooses to engage in and requiring an individual to purchase a good or service. Granted, too, there is a difference between making automobile insurance compulsory, as a condition of the privilege to drive a car, and making health insurance compulsory, whether an individual wants it or not."

But she justs goes on to presume that the distinction is meaningless and encompassed within current precedent.

There is a maxim in judicial interpretation that the law follows the facts. The truth is that the Supreme Court has never been presented with a case under either the Commerce Clause or authority to tax that involves the government forcing an individual to purchase a good or service rather than restricting commercial behavior that can be considered detrimental to interstate commerce. If Marcus is nevertheless correct, there is no limit to what we can be forced to do. Would it not be in the interest of a healthy interstate economy to prevent the demise of General Motors? Force us to buy GM cars! Isn’t AIG too big to fail? Force us to buy AIG insurance! Want to promote the beef industry? Force vegetarians to eat meat! And on and on it will go.

The health legislation is a cornucopia of progressive usurpation of our rights. I consider the mandate, however, to be the most pernicious. So much of the discussion and attacks by conservatives have focused on the public option. I’m concerned, however, that when the public option dies the mandate will ride in on the tide.