Oba­macare car­ries too high a price in lib­erty

Forc­ing pur­chase of health in­sur­ance not grounded in Con­sti­tu­tion

The Washington Times Daily - - Opinion - By Sen. Or­rin G. Hatch

In Oc­to­ber 2009, a re­porter asked then-house Speaker Nancy Pelosi, “Where specif­i­cally does the Con­sti­tu­tion grant Congress the au­thor­ity to en­act an in­di­vid­ual health in­sur­ance man­date?” She re­sponded, “Are you se­ri­ous?” Few ques­tions could be more se­ri­ous, and this week, the Supreme Court is spend­ing three days ex­plor­ing this and sev­eral other ques­tions about the le­git­i­macy of Oba­macare, the pres­i­dent’s sig­na­ture achieve­ment and the largest ex­pan­sion of gov­ern­ment in gen­er­a­tions.

This case is not about health care pol­icy but about whether we still have a real Con­sti­tu­tion. Two prin­ci­ples are at stake. First, as Ge­orge Washington put it in his farewell ad­dress, the ba­sis of our sys­tem of gov­ern­ment is that “the Con­sti­tu­tion . . . till changed by an ex­plicit and au­then­tic act of the whole peo­ple, is sa­credly oblig­a­tory upon all.” Sec­ond, as the Supreme Court put it in Mar­bury v. Madi­son seven years later: “The pow­ers of the leg­is­la­ture are de­fined and limited; and that those lim­its may not be mis­taken or for­got­ten, the Con­sti­tu­tion is writ­ten.” This case is about whether our writ­ten Con­sti­tu­tion still de­fines and lim­its fed­eral power un­til the peo­ple say oth­er­wise.

Mea­sured by that stan­dard, Oba­macare’s in­sur­ance man­date is un­con­sti­tu­tional. This is the first time in Amer­i­can his­tory that Congress is forc­ing Amer­i­cans to pur­chase a par­tic­u­lar good or ser­vice. More im­por­tant than iden­ti­fy­ing a prece­dent for the man­date, how­ever, is iden­ti­fy­ing a power for Congress to en­act it. The only can­di­date is the power to reg­u­late in­ter­state com­merce. The in­sur­ance man­date does not reg­u­late com­mer­cial or com­merce-re­lated ac­tiv­i­ties but de­ci­sions whether to en­gage in those ac­tiv­i­ties.

De­ci­sions whether to pur­chase goods or ser­vices ob­vi­ously have eco­nomic con­se­quences, and Congress uses in­cen­tives to in­flu­ence pur­chas­ing de­ci­sions. Re­mem­ber the “cash for clunkers” pro­gram? But if Congress has the power to dic­tate pur­chas­ing de­ci­sions, it sim­ply could have re­quired Amer­i­cans to pur­chase new cars to help the auto in­dus­try. The dif­fer­ence be­tween ac­tiv­i­ties and de­ci­sions, be­tween in­cen­tives and man­dates, is far more than a dif­fer­ence of po­lit­i­cal de­gree; it is a dif­fer­ence of a con­sti­tu­tional kind.

When Oba­macare be­came law two years ago, its back­ers said its pol­icy and con­sti­tu­tional mer­its would be­come plain for all to see. Once peo­ple heard the ar­gu­ments and got the facts, they said, re­sis­tance would soon fade away. Well, what do the Obama ad­min­is­tra­tion, con­gres­sional Democrats and their lib­eral grass-roots al­lies have to show for two years of re­lent­less cam­paign­ing? The lat­est Gallup polls tell us that af­ter all the ef­fort, more Amer­i­cans say Oba­macare is a bad idea and fewer say it is a good idea than two years ago.

Per­haps more im­por­tant, nearly three-quar­ters of Amer­i­cans now think the Oba­macare in­sur­ance man­date is un­con­sti­tu­tional, the high­est level ever. A ma­jor­ity of Democrats and even a ma­jor­ity of those who think Oba­macare is a good idea say the in­sur­ance man­date is un­con­sti­tu­tional.

In a brief filed with the Supreme Court, 42 of my Se­nate col­leagues and I point out that “it is hard to imag­ine any pri­vate decision not to pur­chase a par­tic­u­lar good or ser­vice that does not have some eco­nomic im­pact when ag­gre­gated among mil­lions of peo­ple. Un­der that ra­tio­nale, the gov­ern­ment could man­date any com­mer­cial ac­tiv­ity.” It should take more than an imag­i­na­tion and a po­lit­i­cal agenda to prop­erly in­ter­pret and ap­ply the Con­sti­tu­tion.

Our coun­try will al­ways face chal­lenges. Par­ti­san ma­jori­ties and ide­o­log­i­cal agen­das will come and go. But we must al­ways pro­tect the lib­erty that our sys­tem of gov­ern­ment and our writ­ten Con­sti­tu­tion make pos­si­ble. Pres­i­dent An­drew Jack­son said eter­nal vig­i­lance is the price of that lib­erty. This case is about whether we will pay that price, whether we will in­sist that gov­ern­ment sub­mit to the Con­sti­tu­tion rather than try to re­make it in gov­ern­ment’s im­age. That is in­deed a very se­ri­ous mat­ter.

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