We are mere days away from the Supreme Court ruling on the Affordable Health Care Act, more commonly known as “Obamacare.” There is much speculation as to how the Court will rule and whether or not the Justices will strike down all or parts of the law.
Based on oral arguments in March, it appears that a majority of the Justices were most uncomfortable with the individual mandate portion of the law that requires every American to purchase health insurance or face a fine.
Many Justices questioned whether Congress had the power to mandate individuals to enter a marketplace.
Proponents of the law and the mandate argued that Congress had the power to include a mandate based on the Commerce Clause of the Constitution that allows the Federal Government to regulate interstate commerce. The Commence Clause to the US Constitution states that the Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. Conservative Justices questioned whether the individual mandate regulated commerce or in fact created it, which would be out of bounds. The arguments were best summed up by Justice Kennedy who questioned whether letting the individual mandate stand would fundamentally alter the nature of the relationship between the Federal Government and its citizens.
The individual mandate is unconstitutional and should be struck down.
Many who support it will argue that it is no different than the mandate to purchase automobile insurance, but it is significantly different from that mandate. First, the Federal Government does not require individuals to purchase automobile insurance; the 50 individual state governments and the government of the District of Columbia have these mandates. Under our Constitution this is appropriate because Article 10 states, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is clearly the right of each state government to take the power to mandate this insurance purchase if the people of that state deem it appropriate to do so.
Second, the mandate to purchase automobile insurance is only applicable once the individual makes the personal choice to enter the market place and purchase a car. Only then does the mandate to buy auto insurance kick in. If an individual is so opposed to a government mandate of any kind they may choose not to purchase a car. This may resent a hardship in many jurisdictions and most people would not make this choice but the choice remains in place.
The Affordable Health Care Act does not offer this choice.
The individual mandate contained in this law forces individuals into the marketplace whether they want to go there or not and gives them no choice in the matter.
In fact, the law penalizes anyone who does not enter the marketplace to purchase insurance. At its essence, the AHCA mandates the creation of commerce in order to regulate it and this is a step too far for the Federal Government.