Individual Mandates for Health Insurance Are Illegal

One of the most egregious components of the Democrats’ health plan is the requirement that individuals purchase ‘approved coverage’ or face a penalty. This proposal is absolutely illegal. The only argument which could be attempted to support it would be an aggressive interpretation of the commerce clause. Previously, the clause has been an umbrella under which all types of government regulation have been stuffed from car insurance to farming. However, since the object of the law is a person and not a product the commerce clause cannot apply.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

Speaking of illegalities, the bill will not verify the citizenship status of beneficiaries. Republican amendments offered by Representatives Heller and Dean to prevent illegal immigrants from having access to the government health program were defeated by Democrats.

The health care reform bills Congress is considering would not require people who sign up for government health care programs to verify their eligibility. That opens the door for millions of illegal aliens and other non-citizens to receive medical services paid for by taxpayers, a panel of experts from the conservative Center for Immigration Studies (CIS) and The Heritage Foundation said Wednesday.

… Rector said people signing up for government-run health care programs would not have to substantiate that they are in this country legally. “The health care reform legislation turns that on its back and tramples it into the dust,” Rector said. “It basically says, ‘We will not verify, we will not check, we have a complete open door for every illegal immigrant, current and in the future, to simply enroll and receive benefits under this program.’

… “The Finance Committee outline, like the HELP and the House bills, mandates that individuals must carry health insurance or else face a fine,” [CIS fellow] Edwards said. “The Finance outline says that illegal aliens will be exempt from that individual mandate. It sets up a system where you’ve got Americans and legal immigrants who have to have coverage or else pay a fine,” Edwards said. “But illegal aliens would escape the mandate and any fine for not being insured“.

Illegal immigrants make up 7 million out of the 46 million uninsured pool which is cited by Democrats. Another 12 million of the uninsured are eligible for coverage but simply haven’t signed up.

Twenty-five percent of the uninsured are already eligible but have failed to enroll in existing state-federal health coverage under Medicaid, for very low-income parents, pregnant women and people with disabilities, or the State Children’s Health Insurance Program, or SCHIP, for children, according to studies, including one in 2007 by the nonpartisan Kaiser Family Foundation…But based on the 46 million U.S. Census Bureau estimate, removing those people already eligible for free care would knock the figure down to around 34.5 million.

…The Pew Hispanic Center has estimated that 6.8 million people without health insurance were in the United States illegally in 2007.

Finally, the nation’s leading small business association predicts that the 8% employer tax penalty for not carrying coverage will result in the loss of 1.6 million jobs.

Research shows an employer mandate could cost 1.6 million jobs with more than 1 million of those jobs lost in the small business sector.