Monte Kuligowski
ObamaCare's individual mandate: A new twist on old-fashioned central control
By Monte Kuligowski
September 20, 2011

The U.S. Fourth Circuit Court of Appeals recently dismissed the Commonwealth of Virginia's lawsuit which challenges the constitutionality of ObamaCare's individual insurance mandate. The court dismissed the case, asserting that Virginia does not have standing to bring suit and did not address the substance of the claim. The mandate challenge will eventually be resolved by the U.S. Supreme Court.

As I was reading an article on the ruling, a statement by Virginia's attorney general, Ken Cuccinelli stood out:

"Obviously, we are disappointed in the ruling. Our disappointment not only stems from the fact that the court ruled against us, but also that the court did not even reach the merits on the key question of Virginia's lawsuit — whether Congress has a power never before recognized in American history: the power to force one citizen to purchase a good or service from another citizen."

What caught my attention was Cuccinelli's choice of language when describing the unprecedented power that Congress attempts to wield: "the power to force one citizen to purchase a good or service from another citizen."

We should notice that Cuccinelli does not say that the Congressional power never before recognized in American history is the power to force citizens to purchase goods or services.

The attorney general adds the words, "from another citizen."

If Cuccinelli had not added "from another citizen," his statement would be false. Congress does force citizens to purchase retirement, disability and healthcare insurance. The only difference is that citizens are not forced to purchase insurance from other citizens. Citizens are forced to purchase Social Security and Medicare from the federal government.

Tax Clause / Commerce Clause

Congress currently relies upon its power to tax to justify forcing individuals to participate in the federal insurance programs. Regarding ObamaCare, Congress relies upon its power to regulate commerce to justify forcing individuals to purchase insurance from private companies.

The power to tax is supposed to relate directly to federal responsibilities enumerated in the Constitution. Commerce Clause power is delegated to Congress to regulate the commerce between the states, ensuring that it is uniform and fair.

Citizens are justifiably outraged over the new insurance mandate, but an abuse of the federal government's power to tax should be no less offensive than its abuse of the Commerce Clause.

The feds have no constitutional authority to be in the insurance business to begin with — regardless of the pretext.

Regulating 'Inactivity'

One of the strongest arguments being advanced against ObamaCare is that the government cannot regulate "inactivity," via the Commerce Clause. A person has to right to abstain from doing business with health insurance companies and the government cannot force anyone into "commerce" related activities.

One of the legal petitions against ObamaCare argues that the individual mandate "does not regulate economic activity, but rather the decision to not engage in commercial or economic activity." Unfortunately, federal dictators have long ago trumped one's decision to "not engage in economic activity."

"Inactivity" is already not an option when it comes to having business relations with the federal government relating to retirement, disability and health insurance. The feds take our money and if we are lucky and live long enough we might benefit from the terms of a non-negotiable government contract.

The Necessity of Getting Back to the Constitution

The crux of the matter is not that ObamaCare forces a citizen to buy a product from another citizen, but that the feds want to force citizens to do something in an area in which the central government has no valid constitutional authority.

Now, I know in context of a particular case, it's not wise to tell the court that ObamaCare is unconstitutional in the same manner that Social Security and Medicare are unconstitutional. That wouldn't help the case inasmuch as the courts currently operate under a legal fiction: if the Supreme Court says something is constitutional, it's constitutional in spite of what the actual Constitution says.

The problem, of course, is that the Supreme Court can just as easily say that the ObamaCare mandate is "constitutional." After all, what's the practical difference between forcing individuals to deal with the government or with private citizens? The premise is the same in both instances: those in the central government know what's best for everyone and what's best for everyone is for everyone to have government retirement/disability insurance and government health insurance (for the poor) or private health insurance (for the middle class and rich).

Litigants against ObamaCare have to parse words and focus on the fact that Congress has never forced a citizen to purchase a product from another citizen.

The distinction, like most of postmodern constitutional law, is artificial.

The federal government has been in open rebellion against the Constitution for some time now. Staunch leftists use the federal courts, Congress and bureaucracies to supervise and micromanage our lives via central command and control. Big government always wants to do a little more until it finally becomes our cradle to grave nanny state — populated with federal dependents.

Conservatives argue that, per the Constitution, the federal government cannot force people into economic activity. The administration and its agents simply reply, "Yes We Can." That's effectively the state of constitutional jurisprudence in America — though the arguments are made with layers of creative case law interpretation.

Eventually, to survive as a free country, we will have to get back to the limits the actual Constitution places on the federal government. This will take a real awakening. Hopefully, it will not take another Obama term to realize that it's worth pledging our lives, fortunes and sacred honor in order to wrest tyrannical power from a seemingly all-powerful, centralized government.

© Monte Kuligowski


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Monte Kuligowski

Monte Kuligowski is an attorney and writer whose legal scholarship, including "Does the Declaration of Independence Pass the Lemon Test?" (Duke Journal of Constitutional Law & Public Policy), has been published in several law journals... (more)

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