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Health Freedom Watch
January 2010


Why a Federal Health-Insurance Mandate Is Unconstitutional

As Congress began reconciling the House and Senate health “reform” bills, legal scholars and pundits were debating the constitutionality of the individual insurance mandate included in both bills. Advocates of the mandate say Congress has the power to require the purchase of insurance under the Constitution’s Commerce Clause.

But Sheldon H. Laskin, an attorney and adjunct professor of law at the University of Baltimore's Graduate Tax Program, says for that to be true, “the purchase of health insurance must constitute ‘commerce’ within the meaning of the Commerce Clause. It does not.”

He explained:

“In 1982, the Supreme Court declared that, in order for a commodity to be considered an article in commerce, it must be capable of being sold. Sporhase v. Nebraska, 458 U.S. 941 at 949 – 950 (1982). While there is no doubt that the sale of health insurance by an insurer constitutes commerce, it does not follow that the purchase – or more precisely, the failure to purchase – health insurance by a consumer also constitutes commerce. Health insurance, once purchased by a consumer, is not capable of being further sold in commerce because there is no market for it; who would purchase a health insurance policy naming someone else as the insured?” [Emphasis added.]

Professor Laskin also addressed previous Supreme Court rulings permitting the feds to regulate wheat and marijuana under the Commerce Clause: “Unlike wheat or marijuana, health insurance is not a fungible commodity and is therefore not marketable. Again, no one would purchase my health insurance – it is personal to me and cannot be sold for any price.”

Moreover, Laskin refutes arguments comparing a federal health-insurance mandate to state automobile-insurance mandates: “Driving is a privilege, and the states are free to impose any reasonable condition on the exercise of that privilege that they choose. In any event, the states have limited the auto insurance requirement to the purchase of liability insurance to cover injuries sustained by third parties. No state requires drivers to purchase insurance to cover their own injuries.” [Emphasis added.]

Meanwhile, attorney Kent Masterson Brown, writing for the Washington Legal Foundation, anticipates that “The courts would strike down any mandate Congress enacts that directs individuals to purchase health insurance or be subject to fines or imprisonment.  Such a mandate is an unconstitutional exercise of congressional power under Article I, Section 8, and an invasion of those express and implied powers retained by the States and those rights otherwise retained by the people.  To do otherwise would allow Congress to undo more than two hundred and twenty years of Constitutional jurisprudence.” 

Finally, progressive commentator David Swanson sums up the issue this way: “So, the constitutional question, for those who still care whether laws are constitutional, is whether the power to force you to buy a horrible product you do not want from a disreputable monopolistic corporation that pays regular bribes to your elected representatives in the form of campaign ‘contributions’ is specifically listed anywhere in Article I.”  He concludes, “Ultimately, the question is whether we will stand for fascistic policies or fascistic interpretations of the Constitution. Personally, I will not stand for either.”


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Would a Federal Health-Insurance Mandate Eliminate Seniors’ Freedom to Contract Privately for Health Care?

What would happen to seniors’ freedom to decline Medicare Part B and pay privately for doctors’ services if a federal health-insurance mandate becomes law?  Medicare Part B has always been voluntary.  But if seniors are required to carry comprehensive coverage and insurers refuse to cover them because they qualify for Medicare Part B, would not seniors be coerced into enrolling in Medicare Part B to meet the federal mandate?

But if that’s the case, seniors would lose their freedom to pay physicians out of pocket because Medicare penalizes doctors for accepting private payment from Medicare beneficiaries for covered services.*

Under these circumstances the Medicare policy against private payment will need to be repealed immediately or challenged in court. 

*Note: Regarding information on how Medicare penalizes doctors for accepting private payment for Medicare-covered services, see “What Every American Needs to Know about Social Security and the Mandatory Medicare-Enrollment Policy”:

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Health Care Reform: 17% Expect Health Care Plan to Lower Costs, 57% Expect Costs to Go Up

The Majority of Americans Remain Opposed to the Pending Health Reform Legislation

The following is from Rasmussen Reports (January 11, 2010):

Voter expectations that the health care legislation before Congress will become law have reached a new high, but most are still opposed to the plan. The latest Rasmussen Reports national telephone survey shows that just 17% believe passage of the legislation will achieve the stated goal of reducing health care costs. Fifty-seven percent (57%) think it will lead to higher costs. [Emphasis added.]

Fifty-two percent (52%) also believe passage of the legislation will lead to a decline in the quality of care.

Overall, 40% of voters nationwide favor the health care reform plan proposed by President Obama and congressional Democrats. Fifty-five percent (55%) are opposed. As has been the case throughout the debate, those who feel strongly about the issue are more likely to be opposed. Just 19% of voters Strongly Favor the plan while 45% are Strongly Opposed. [Emphasis added].

When it comes to paying for the plan, voters are okay with taxing the rich but strongly reject cuts in Medicare and excise taxes on “Cadillac” health plans provided by employers. Adding to concerns about paying for the plan is the fact that 78% expect it to cost more than projected. Voters overwhelmingly believe passage of the plan will increase the federal deficit and lead to middle class tax hikes.

Both support and opposition for the plan have changed little since Thanksgiving (see question wording and trends). Eighty-six percent (86%) of liberals favor the plan, and 82% of conservatives oppose it. Among political moderates, 48% are in favor, and 40% are opposed.

Despite the ongoing public opposition, 69% say it’s at least somewhat likely that the bill will pass. That figure is up four points from a week ago and includes 31% who say passage is Very Likely.

While most Americans oppose the overall plan, two reforms in the plan are supported by more than 70% of the public -- creating a new national insurance exchange and requiring health insurance companies to accept applicants with pre-existing conditions. Some other parts of the plan are popular as well. Still, polling data released two weeks ago showed that reminding voters of what’s in the plan does not increase support for it.

From the beginning of the health care debate, a major challenge has been the fact that most Americans have health insurance and are generally happy with their coverage. However, 52% of voters fear that they could be forced to change insurance if the health care legislation passes.

Also consistent throughout the health care debate has been the partisan nature of the response. The latest numbers show that 72% of Democrats favor the plan while 83% of Republicans oppose it. Among those not affiliated with either major party, 30% are in support of the plan, and 60% are opposed. [Emphasis added.]

Most voters favor the ban on abortion coverage for insurance plans that receive federal subsidies, and 47% believe each state should have the right to opt out of the federal plan if it passes. On a related topic, 34% favor a single-payer national health insurance system.

National telephone survey of 1,000 likely voters by Rasmussen Reports, conducted January 8-9, 2010 (margin of sampling error, +/- 3 percentage points with a 95% level of confidence). 

Source: “Health Care Reform: 17% Expect Health Care Plan to Lower Costs, 57% Expect Costs to Go Up,” by Rasmussen Reports, January 11, 2010:

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Health Freedom Watch is published by the Insitute for Health Freedom. Editor: Sue Blevins; Assistant Editor: Deborah Grady. Copyright 2010 Institute for Health Freedom.