Congressional report questions the constitutionality of healthcare mandates

  Twenty states are in the process of challenging the constitutionality of the healthcare mandates written into law with the passage of the healthcare reform legislation. The Obama regime was trying to get the lawsuits thrown out, but a judge recently ruled that the cases can move forward because there is enough of a concern over the legality over the mandates for the courts to become involved.

   A recently released report by the  Congressional Research Service also raises questions about the constitutionality of the healthcare mandates, as well as the two angles that the Obama regime is trying to pursue in their defense of the mandates–that the commerce clause gives them the authority to mandate healthcare coverage and that the Congress’ enumerated power of taxation in the constitution gives the regime the power to impose a penalty on people who refuse to buy healthcare coverage–leading to speculation on this blog that the Obama regime knew all along that these mandates could be ruled unconstitutional and moved forward with them despite this possibility.

  While this report offers no final opinion on the constitutionality of the healthcare mandates it does raise concerns over the legislation.

 The CRS report finds that the two primary defenses of the mandate – that it is a tax and that Congress can impose it under the Commerce Clause – to be problematic

  Looking at the second defense first, because it was Barack Obama’s initial line of defense, the CRS report stated:

Despite the breadth of powers that have been exercised under the Commerce Clause, whether the individual responsibility requirement would be constitutional under the clause is a challenging question, as it is a novel issue whether Congress may use the clause to require an individual to purchase a good or a service

One could argue that while regulation of the health insurance industry or the health care system could be considered economic activity, regulating a choice to purchase health insurance is not. It may also be questioned whether a requirement to purchase health insurance is really a regulation of an economic activity or enterprise, if individuals who would be required to purchase health insurance are not, but for this regulation, a part of the health insurance market.“This is a novel issue: whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity

  Clearly there are many legitimate questions as to whether or not the commerce clause grants the federal government the authority to force people to buy a product that they may not want, perhaps that is why Barack Obama was willing to admit after all his denials that his healthcare mandates really were a tax when he decided to use the Congress’ enumerated power of taxation as a second line of defense.

  The CRS report also questions whether this is a valid defense as well:

The power to tax and spend for the general welfare is one of the broadest powers in the Constitution and affords the basis of government health programs in the Social Security Act, including Medicare, Medicaid, and the State Children’s Health Insurance Program.“Because Congress’s power to tax is extremely broad, a court might look to it as a legitimate source of power for Congress to impose the individual responsibility requirement

   Reading that statement gives one the impression that there is a chance the Obama regime could win a court challenge using this defense; after all, the courts have already ruled that the government can tax the people for these other entitlement programs, is this really all that different?

   It might not be that simple:

“As the tax is imposed conditionally and may be avoided by compliance with regulations set out in the statute, some might argue that it may also be accurately described as a penalty and, therefore, the taxing power alone might not provide Congress the constitutional authority to impose the requirement

In other words, the constitutionality of the individual responsibility requirement, if determined to be a penalty, would depend upon whether Congress has the authority under a power other than the taxing power to impose a financial burden on individuals that lack health insurance

   It comes down to this: is this fee which Americans will be forced to pay if they choose not to buy healthcare a tax or is it a penalty? It is obvious to me that this is a penalty that the federal government is going to apply to non-conforming Americans–the only reason the IRS will be enforcing this law is because this is the only avenue open to the federal government to collect this fee, by garnering our rightfully deserved over tax payment–and I do not see how this could ever be deemed constitutional.

  This battle is far from over, we may be fighting it for years but fighting a battle against an over-reaching federal government is a fight worth having no matter how long it takes. We must never give up!