The Patient Protection and Affordable Care Act represents more than a federal takeover of health care; it is a direct threat to federalism itself. Never before has Congress exercised its power under Article I, Section 8 of the Federal Constitution to force American citizens to purchase a private good or a service. Congress is also intruding deeply into the internal affairs of the states, commandeering their officers, specifying in minute detail how they are to arrange health insurance markets within their borders, and determining the products that will be sold to their citizens. If allowed to stand, this unprecedented concentration of political power in Washington will reduce the states to mere instruments of federal health policy. State legislatures and sympathetic Members of Congress should consider (among other actions) crafting a constitutional amendment to guarantee the personal liberty of every citizen in the area of health care. Given the trajectory of federal policy, state officials should take the lead in the next phase of the national health care debate, reclaim their rightful authority, and change the facts on the ground for Congress and the White House.
Robert A. Levy argues that Obamacare’s mandate to purchase health insurance is not authorized under Congress’s power to “lay and collect taxes.”
Richard Epstein argues that ObamaCare would unconstitutionally coerce the states.
The federal government responded to the lawsuit brought jointly by 20 state attorneys general who argue that ObamaCare is unconstitutional. In addition to claiming that the states lack the standing to sue and that ObamaCare is a valid regulation of interstate commerce, the Department of Justice argued that the individual mandate is part of Congress’s broad power to tax. This directly contradicts frequent claims, but Congressional Democrat leadership as well as President Obama, that suggestions that the individual mandate was a tax were misleading and disingenuous fear-mongering.
When selling Obama Care, the president “absolutely reject[ed]” the claim that the individual mandate is a tax, largely because the individual mandate heavily affects the middle class, and the president promised in the campaign not to raise any taxes on them. Now that the bill has passed, the Obama Administration is arguing that the individual mandate is Constitutional because Congress is empowered to levy taxes by the Constitution, contradicting his earlier position.
The Obama Administration has filed its response to the 20 state lawsuit challenging the Constitutionality of ObamaCare. Among the Justice Department’s arguments is a claim that forcing Americans to buy health insurance or pay a tax is a power granted to Congress just like the power to levy any other tax. This flatly contradicts Obama’s earlier insistence that the individual mandate was not a tax, but merely a responsibility fee. “Put another way, the administration is now arguing in federal court that Obama signed a massive middle-class tax increase, in violation of his campaign pledge.”
Claiming that Virginia has standing to sue by virtue of a law passed by the state’s General Assembly, making it illegal to require citizens of the commonwealth to buy health insurance, Virginia Attorney General Ken Cuccinelli has asked a federal judge to deny the Obama administration’s request to have Virginia’s case challenging the constitutionality of ObamaCare be dismissed.
The association for physician-owned hospitals filed suit against the government, claiming that the ObamaCare provision preventing them from expanding is arbitrary and violates their Constitutional rights to due process and equal protection.