Randy Barnett at the Volokh Conspiracy makes presents a solid case that the recently passed health care legislation should be deemed unconstitutional (though the Supreme Court likely won’t overturn it):
The individual mandate goes far beyond these previous acts. Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law. Telling someone how they must do something is one thing; commanding that they must do something is entirely different.
Imagine if Congress ordered the majority of American households without a firearm to buy a handgun from a private company, and punished their failure to do so with an escalating monetary fine, which it labeled a “tax.” Would the supporters of the health insurance mandate feel the same about the constitutionality of such a measure?
If the health legislation’s supporters were really so confident in their Commerce Clause theory, they would not immediately change the subject to the Tax Power. Nor would Democrats have dressed up their mandate to look like a tax.
Yet, here too, the Supreme Court has never upheld a “tax” penalizing private citizens who refuse to enter into a contract with a private company. The Constitution distinguishes between taxes and what the Eighth Amendment calls “fines.” Had the Tax Power been broad enough to allow Congress to fine any individual action or failure to act, wouldn’t Congress have discovered this power years ago.
Now that it has, supporters are betting there won’t be five votes on the court to thwart a popular act of Congress. Another safe bet.
April 1st, 2010 | 10:05 am
I guess you right-wingers never heard of the Militia Act of 1792.
April 9th, 2010 | 12:35 am
First of all, love the tinge of ad-hom, always provokes good responses! But, secondly, and most importantly, the Militia Act is not analogous to the Health Care Bill on multiple levels. You can’t just say, “we’ve forced people to buy things in the past, so we can do it now!”
1. Prima facie, a militia, in the sense of the 1792 act, is much like a conscripted army, which was made illegal under Nixon’s presidency. Obviously, since we’ve found conscription to be immoral (thankfully), you can’t use an archaic act that is no longer applicable to the status quo to justify the health care bill.
2. The circumstances that would have been required for the militia bill to be enacted are not at all similar to the circumstances involving forcing citizens to have health care. The Militia Bill would only require citizens to purchase those items stipulated in the bill during a time of attack (which, again, we have already ruled as unjust). The Health Care bill requires that all citizens have health care all the time as a constant expense. The two are very plainly not the same.
3. The Militia Act has exemptions for certain classes of people (mariners, post officers, government officials, etc). The health care bill does not. Moreover, women were not included under the statutes of the Militia Act, whereas women are required to have health care.
4. The Health Care bill essentially forces people to engage in a constant contract with a private company. The Militia Act requires people to be in a temporary contract with the government, only purchasing a few items on the side to help them in their governmental duty.
5. The Health Care bill’s fine for not having health care is forced upon a person because they haven’t purchased healthcare. The fines given if the Militia act is not followed aren’t necessarily because one didn’t buy a musket or some equipment (I doubt the federal government would have fined a soldier for only buying 19 bullets when the Act stated twenty), but rather because one didn’t participate in the Militia itself.
Those are but a few cases of disanalogy, but I feel I’ve made my point.
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