June 21, 2018
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Health care reform plan has no legal foundation

By David Jenny, Special to the BDN

The president and Congress agree: Washington’s solution to 46 million uninsured Americans is to “mandate” that they all purchase health insurance from private companies, or — if the president’s view should prevail — a government-run “public option.”

Until now, our federal government has never claimed the power to compel individual citizens to pay insurance premiums to either private companies or government entities.

Astonishingly, no one is asking: “Does the federal government actually have the power to dictate that individuals purchase health insurance?”

The rule is that our federal government is a “limited” government; it has only the powers that “we the people” give it. All the power the federal government has, we gave to it — word by word — in the U.S. Constitution and the amendments made thereto.

Article I, Section 8 of the Constitution lists the “powers” granted to Congress. Unsurprisingly, neither that section nor any other gives Congress the “power to mandate” the purchase of health insurance. More importantly, no listed power could reasonably be interpreted to authorize government to coerce the payment of premiums as if they were taxes.

The conclusion is inescapable that health care reform as envisioned by this Congress and this president is without legal foundation.

The sole, largely unexamined, support for this unprecedented federal mandate is that it is “like” state mandates to purchase automobile liability insurance.

But consider the differences. States reasonably require liability coverage because motor vehicles can cause property damage, physical injury and death. Still, many Americans opt out of auto liability mandates by simply not registering a motor vehicle. Most importantly, no constitutionally guaranteed rights are compromised by such mandates.

The proposed federal health insurance mandate would be imposed on individuals and families merely for being in the U.S. Apparently, citizens and noncitizens alike would be subject to it. There is no way to opt out of the mandate, and the federal government will penalize noncompliance with stiff fines. Such unprecedented overreach threatens important property rights and liberty interests — at least for U.S. citizens.

The due process clause of the Fifth Amendment guarantees: “No person shall be … deprived of life, liberty, or property without due process of law.” Struggling, cash-strapped citizens have property rights to their after-tax dollars that cannot be mandated away. They also have the right to be free from unwarranted government intrusion into their lives. For example, they have the right to be free from a determination of how much they can afford to pay for government-mandated health insurance based on a crude assessment of their financial status.

Proponents state that a mandate is not a tax. Blacks’ Law Dictionary defines a tax as “a pecuniary burden laid upon individuals or property to support the government, and is a payment exacted by legislative authority.” So, the president and other proponents are correct; a federal mandate to purchase health insurance is not a “tax.”

But, if enacted, it would be a pecuniary burden laid upon individuals to support shareholders of insurance companies and it would be a payment exacted by unfounded legislative authority.

If government mandates us to support the insurance business what will it mandate next?

Is it too much to ask that Washington cite authority for such a radical mix of government power and corporate profits?

Our Constitution gives Congress the power to tax. Congress has already exercised that power to fund critical pieces of a national health care system, namely Medicare, Medicaid, the Children’s Health Insurance Program and Veterans Affairs health care. Altogether, government covers more than 50 percent of personal health care expenditures while private insurance covers a mere 36 percent. We are more than halfway to national health care.

If spreading the risk of getting sick over the greatest number of people is the goal, some form of tax-funded “Medicare for all” is the lawful way to achieve that goal.

I want to support our president’s efforts to reform our health care system. But Congress and the president must learn that there are limits to the federal government’s authority.

Any plan that mandates the purchase of health insurance will fundamentally change the role of government in our lives. We cannot allow that to happen.

David Jenny of Owls Head is a retired lawyer.

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