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Dino LaVerghetta

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With the Passage of the Health Care Bill, Our Constitution is on Life Support

Posted: 04/05/10 07:24 PM ET

Rhetoric aside, the debate over the recently passed health care legislation was never about whether health care coverage should be expanded or whether health insurance needed to be made more affordable. All reasonable people, both Republicans and Democrats alike, agreed that it was necessary to increase access and reduce costs. In no uncertain terms, the debate was about one thing: the proper size and role of the Federal Government.

In the end, proponents of small government, such as myself, lost that debate, although not as badly as we could have. While the legislation increases costs, taxes, and governmental regulation, we were able to avoid the socialization of the industry and thereby protect the quality of the world's most innovative health care system. In general, the legislation represents a troublesome but relatively moderate expansion of Federal power. That is, of course, except for one provision: the individual mandate to purchase health insurance. That provision is wholly unconstitutional and sets a dangerous precedent for a fundamental change in the nature of government as we know it.

Under the law passed by Congress, individuals who do not purchase health insurance will have to pay a fine of $695 a year or 2.5 percent of income, whichever is higher. Make no mistake; this provision represents an extraordinarily significant and unconstitutional expansion of Federal power. For the first time in history, Americans will be legally required to enter into a transaction with another private party as a precondition to lawful existence in the United States. If allowed to stand, the provision sets a very dangerous precedent for all of us who value our individual liberty and choice.

America was founded on principles of personal liberty and the Founders were particularly wary of a strong central government. As such, the United States Constitution explicitly limits the Federal Government's authority to a short list of enumerated powers generally relating to foreign affairs, national defense, the printing of money, and interstate commerce. In all other areas of life, the people were to be free from Federal intrusion and any regulation was to be done by the individual states in accordance with local values.

As Americans know all too well, Congress has greatly expanded its reach far beyond these powers to the point where it regulates nearly every aspect of our lives. For the most part, it has justified this expansion by pointing to the Commerce Clause contained in Article I, Section 8 of the Constitution. The Commerce Clause reads, in relevant part: "[Congress shall have power] to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." Despite the fact that this clause was intended only to give Congress the power to regulate transactions between people in different states, Congress has since used the clause to justify its regulation of any act that has even the most tangential effect on our system of interstate commerce. For example, in recent years, Congress attempted to pass Federal laws regulating domestic violence and the possession of guns in school zones by claiming that these acts had some sort of indirect effect on interstate markets. While the Supreme Court did strike down these two egregious examples of Federal overextension, noting that the regulation of such acts was the province of the state legislatures, it has unfortunately acquiesced to the vast majority of Congress' Federal power grabs.

Predictably, Congress is now trying to justify the individual health insurance mandate by again pointing to the Commerce Clause. They argue that when people without health insurance get sick or injured, the rest of society bears the cost. By requiring everyone to buy insurance, we will reduce these costs. There are a number of problems with this rationale, not the least of which is that health insurance cannot even be purchased across state lines and thus the relation to interstate commerce is indirect at best. However, even adopting Congress' broad interpretation of its powers to regulate the manner in which interstate transactions take place, the individual health insurance mandate represents something very different and very dangerous.

For the first time in history, the Federal Government is penalizing pure inaction. Congress has effectively mandated that every American take the affirmative step of purchasing health insurance from a private company. Citizens no longer have the ability to weigh the risks and rewards and make a choice for themselves. By simply existing within our borders and not possessing health insurance, you will be violating Federal law.

It is one thing for Congress to regulate an individual's conduct once they have chosen to enter an interstate market, no matter how tangential or indirect that involvement might be. It is another entirely to mandate that individuals enter an interstate market. That is exactly what Congress is doing here. Congress is not regulating anything. It is requiring people, under penalty of law, to take affirmative actions against their will.

Should this provision remain law, it will stand as a dangerous precedent and a distinct threat to individual liberty and choice. If Congress has the power to force individuals into market transactions, the threats to individual liberty are effectively unbounded. What is to stop Congress from requiring people to join gyms in order to reduce the societal costs of obesity? Or, for that matter, what is to stop Congress from effecting the next automobile bailout by mandating that people go out and buy an American car? I would say that we could rely upon the sensibilities of our Congress members, but historically that seems like a bad idea.

The precedent set by the individual mandate would transform a constitutionally limited Federal Government into one of limitless power. There would literally be nothing that Congress could not do. Congress would have the authority to mandate that individuals take any action that it deemed socially beneficial. The nature of the forced action would differ depending upon which party controlled Congress at any given time, but we can be sure to an absolute certainty that Congress members of both parties would not pass up the opportunity to impose their values on the people through the use of their newly found draconian powers.

The precedent set by the individual mandate fundamentally alters the nature of government as we know it. No longer will government be our ostensible protector, regulating individual conduct to ensure that our actions do not harm others. It will now be our master, capable of compelling us to act against our will. This is exactly the type of government that our Founders feared and all of us, both Republicans and Democrats alike, should be equally concerned today. No matter one's view of the health care bill generally, it is imperative that all of us contact our representatives in Congress and tell them to tear up the blank check they have given themselves in the form of the individual mandate. The cost of inaction will not simply be paid in the form of a $695 fine, but in the erosion of personal liberty and choice. That is a cost that none of us should be willing to pay.