|For Immediate Release
February 16, 2011
Contact: Kim Smith Hicks, 202-225-3951
Statement of Judiciary Committee Chairman Lamar Smith
Hearing on the “Constitutionality of the Individual Mandate”
Chairman Smith: As the Framers of the Constitution understood, Congress has an independent duty to examine the constitutionality of the legislation it considers.
Ideally, we should assess the constitutionality of legislation before it becomes law. However, given the unprecedented nature of the health care law’s individual mandate, it is important that we examine its constitutionality even though it has already been enacted.
The individual mandate—which requires all Americans to purchase health insurance—is the foundation of the new health care law. It is also unprecedented.
Twenty-seven states are now challenging the constitutionality of the health care law. Two federal district court judges have ruled that the individual mandate is unconstitutional; two have determined that it is not. Ultimately, it will be decided by the Supreme Court.
The individual mandate requires Americans to purchase health insurance from a private company. It does not matter whether they want health insurance or can even afford it. Under this law, Americans must either obtain insurance or pay a penalty.
But the Constitution, which creates a federal government of limited, enumerated powers, does not necessarily allow Congress to require individuals to purchase any good or service, including health insurance.
As Judge Vinson observed in his opinion in the Florida case declaring the health care law unconstitutional:
“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate . . . imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
The Obama administration argues that the individual mandate is either a law that is necessary and proper for the regulation of interstate commerce or, alternatively, that the mandate is constitutional because it is a tax. The Administration’s arguments are supported by neither the original meaning of the Constitution nor Supreme Court precedent.
The Constitution gives Congress the authority to regulate economic activity, which includes everything from growing wheat to managing a restaurant to running a Fortune 500 company. But the current health care law wrongly assumes that Congress can also regulate economic inactivity.
Neither the Constitution nor the Supreme Court have ever given Congress that authority.
There is a difference between regulating economic activity that is ongoing and forcing Americans to engage in an economic activity, in this case purchasing health insurance.
Part of a free society means the freedom to choose not do something. Never before in America’s history has Congress required people to purchase a good or service simply because they live in the United States, until now.
If the Commerce Clause allowed Congress to regulate inactivity, Congress could force Americans to buy anything that might conceivably affect commerce in some way.
If the housing sector was struggling, Congress could force renters to purchase a house. If the auto industry was on the verge of collapse, Congress could force individuals who take public transportation to purchase a car. Or, if falling citrus prices were driving farmers into bankruptcy, Congress could force consumers to purchase oranges.
The Administration asserts that the decision not to purchase health insurance is unique, because if Americans don’t purchase health insurance the cost of their health care is shifted to the government. But the same can be said of every other type of insurance that people choose not to purchase.
There is no end to the number of commercial transactions Americans could be forced into if the Commerce Clause were as broad as the Obama administration argues.
Because the Administration’s Commerce Clause argument is without legal precedent, the Administration has argued that the individual mandate is authorized by Congress’s power to tax. This argument, however, is an unpersuasive, revisionist justification for the mandate that was not raised until the mandate was challenged in court.
The health care law explicitly calls the penalty imposed on those who fail to purchase insurance a “penalty”—not a tax. As President Obama stated, the mandate is “absolutely not a tax” and “nobody considers [it] a tax increase.”
Additionally, the mandate’s penalty is not listed with the provisions of the health care law intended to raise revenue for the government. And the IRS is prohibited from seeking the same types of punishment for failure to pay the penalty as it does for failure to pay taxes.
The arguments in favor of the constitutionality of the individual mandate are unconvincing and, if accepted, would give the federal government almost unlimited power over Americans’ lives.
In my opinion, the individual mandate is both unprecedented and unconstitutional. We should question any law that appears to violate the Constitution and common sense.