Jewish World Review April 8, 2010 / 24 Nissan 5770
The individual mandate an intrusion on civil society
By John Yoo
http://www.JewishWorldReview.com | For the first time in American history, the federal government has decided that every man, woman and child must do more than simply mind their own business. Upon the threat of fine, each American now must go out and buy health insurance.
Under the bill signed Tuesday by
This "individual mandate" forms the centerpiece of the federal government's latest, greatest intrusion into civil society. Obama staked his presidency on the nationalization of one-sixth of the economy, with measures requiring employers to offer insurance, regulating the policies offered by insurers, and eventually setting the prices for medical procedures. Requiring all Americans to purchase insurance is intended to solve what is known as the "free-rider" problem — those who don't pay for health-care costs but use hospitals — and to broaden the risk pool so the younger and healthier subsidize the care of the older and sicker.
Never mind that most Americans first came to these shores to escape the meddling of their own governments. Put aside that a majority of Americans oppose Obamacare. Ignore the election of Republicans to
Politics cannot repeal Obamacare, at least not until opponents win the House,
The framers of the Constitution believed that the Commerce Clause would control travel and trade that crossed state borders. They wanted to end the beggar-thy-neighbor policies that had led to trade wars between the states and replace them with a single nationwide market. But over the years,
But the individual mandate may finally be a bridge too far, even for the Commerce Clause. In recent years, the
Instead, they carefully enumerated the precise powers given to the government to maintain a balance between the truly national and the truly local.
Aha!, say supporters of Obamacare, other cases go the other way. True. In Wickard v. Filburn, the court upheld a New Deal law fining a farmer for growing wheat purely for his personal consumption. The court's theory was that the accumulation of all of the individual farmers' wheat in the country would seriously affect the national market. And most recently, in Gonzales v. Raich, the same Rehnquist court that decided
But the court has never upheld a federal law that punishes Americans for exercising their God-given right to do absolutely nothing. Even the furthest reaches of the Commerce Clause have extended only to affirmative actions, such as growing wheat or possessing illegal drugs. The only counterexamples that come to mind are the draft and jury duty, and those arise from other constitutional duties than
This is not to say that the government cannot reach the goal of providing health care for all, only that it has to follow the Constitution's established pathways. Rather than imposing an individual mandate,
But there are two big problems with vouchers, despite their firmer constitutional groundings. First, they are too transparent. It is too easy to see the costs of universal health care, and it is too straightforward to compare the performance of the state and the private sector. Second, they don't grow the size of government. Obamacare will add to the legions of public employees who will favor the state over private-market solutions and who will be dependent on expanding government programs. It makes one wonder what Obamacare's agenda really is.
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John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He has served as a law clerk to Justice Clarence Thomas. Comment by clicking here.
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