When Nancy Pelosi was asked where the Constitution authorized Congress to order Americans to buy health insurance, she dismissed the question by saying, “Are you serious? Are you serious?” According to CNSNews, her press spokesman said that this authority comes from Congress’s “constitutional power to regulate interstate commerce.” However, as a new legal memorandum from Heritage points out, Speaker Pelosi is completely wrong: The individual insurance mandate is both unconstitutional and unprecedented (there is a two-page executive summary for anyone who does not have time to read the entire memorandum).
There is no question that the Supreme Court has upheld extensive regulation of economic activity through the Commerce Clause, but it has never upheld any requirement by Congress that an individual participate in economic activity. There is nothing in the Constitution that allows Congress to punish you if you don’t engage in commerce. Liberal law professors and editorial writers such as Erwin Chemerinsky of UC-Irvine and Ruth Marcus of the Washington Post try to gloss over this point, and won’t admit that the Supreme Court has never approved any such requirement.
The new Heritage paper points out that the penalty imposed on individuals who don’t comply with this mandate is also a capitation tax, and therefore unconstitutional, because it is not assessed evenly based upon population. The paper also explains why a federal mandate to buy health insurance would be totally different from state requirements to buy automobile-liability insurance. The federal government does not have the inherent police powers of the states that authorize such mandates; the state requirements are imposed on those who engage in a voluntary activity (driving a car), while the health-insurance mandate would be imposed on everyone; you only have to buy liability insurance if you drive on public roads; and finally, states only require you to get insurance that protects third parties that you may injure through your driving — you are not required to buy insurance to protect yourself from injury or your own car from damage.
If Congress can impose a health-insurance mandate, then there is no limit to what Congress can do, and the Constitution’s limits on congressional power will have essentially been eliminated. As Will Rogers once said, with Congress, every time they make a joke it’s a law, and every time they make a law it’s a joke. Unfortunately, none of us will be able to laugh over this pending abuse of power.