By David R. Usher
The U.S. Supreme Court will soon be hearing a challenge to Obamacare founded on the argument that the Interstate Commerce Clause does not grant federal government the power to force individuals to buy health insurance.
This argument misses the most pivotal constitutional question surrounding the “individual mandate” – it is a requirement that one must buy health care insurance or face civil or criminal penalty.
I argue that the individual mandate is unconstitutional at both the state and federal levels because it is a tax on being alive. There is no constitutional foundation authorizing any governmental body in the United States to require citizens to purchase something merely because they are alive. Whether framed as a tax or fee is immaterial. Government has no statutory authority to charge individuals for being alive.
The individual mandate is a dangerous precedent abrogating the unalienable right to life guaranteed by the Declaration of Independence. The individual mandate turns the Fifth Amendment on its head, depriving individuals of due process rights to life, liberty and property by making life itself a prosecutable economic and criminal offense. It is an attempt to license the act of living itself.
Judge Robert Dierker, author of “The Tyranny of Tolerance,” agrees with my analysis:
“The mandate unquestionably is a deprivation of liberty and property without due process, since it purports not to rely on the taxation power but, as you point out, it punishes people simply for being, unless they submit to the mandate … one could argue that the mandate creates a ‘status offense.’ … Such laws have been struck down on due process/liberty grounds.”
Comparisons to automobile insurance fail. Driving an automobile is not a fundamental right. It is a privilege for which states can require insurance to exercise the privilege of driving.
Being alive is a fundamental right that shall not be abridged, regulated, or taxed. To allow it is to grant government the power to manipulate life itself via taxes, fees and other compelling means. The U.S. Supreme Court would subrogate the United States Constitution to progressive activism and the whims of politics if it fails to throw out the individual mandate.
Since I had not realized this constitutional argument in time to file amicus in the Obamacare case, I can only hope that an organization arguing the case brings our point to the attention of the Supreme Court in conference.
We must also ask why Mitt Romney enacted a Massachusetts state law as unconstitutional as Obamacare. If Romney is to be the Republican presidential candidate, his first priority should be to file suit challenging Romneycare.
David R. Usher is president of the Center for Marriage Policy.
