Unconstitutional Mandate

Virginia AG Ken Cuccinelli released the following Op-Ed, which ran on National Review Online last week:

Unconstitutional Mandate
Virginia's Obamacare lawsuit is about more than just health care.

There are very good reasons that the federal government has never, in the last 221 years, used the Commerce Clause of the Constitution as a vehicle for requiring citizens to purchase goods or services from other citizens.

The first is textual. Article I, Section 8 of the Constitution provides that "the Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States." Although there have been disputes about just how far this should reach into commerce that is entirely intrastate, until now, it has been recognized that this constitutional provision deals with regulation of commerce - that is, with the use of law to impose reason and order on the voluntary commercial actions of citizens, as well as on activities that substantially affect commerce. An individual mandate to purchase health insurance is not regulation in that sense.

Another good reason this has not been done before is that it turns the Commerce Clause into an alternative, off-books funding mechanism. According to the "findings" section of the law itself, the mandate achieves economies of scale, but in reality, it achieves income redistribution. The law caps the amount that insurance companies can charge based on age, and forbids them to exclude those with pre-existing conditions. As such, the young and healthy people the law forces to buy insurance are overcharged for the purpose of subsidizing the old and those with pre-existing conditions.

One of the drafters of the health-care legislation acknowledged that it uses the Commerce Clause to redistribute income. Sen. Max Baucus, chairman of the Senate Finance Committee, admitted during the Senate reconciliation debate, "This is also an income shift. . . . This legislation will have the effect of addressing . . . mal-distribution of income in America."

Congress could have achieved this in an aboveboard fashion by establishing a special insurance fund for persons with pre-existing conditions, to be funded with general tax revenues, but it lacked the political will to do so. The Sixteenth Amendment authorizes the progressive income tax. It, the taxing powers, and the spending power are the traditional sources of the federal government's authority to create social-welfare programs such as Medicaid. The use of a purchasing mandate instead crosses an important constitutional line.

Do most Americans think Congress has the power to force them to buy products from private companies, and to mandate that those products be overpriced for the purpose of income redistribution? Do most Americans think Congress should have this power? Clearly, the authority is not something that should be conceded until after careful consideration by the Supreme Court.

Fortunately, Virginia's governor and legislature acted decisively - and in a bipartisan fashion - to adopt Virginia's new anti-mandate law, the Health Care Freedom Act. The law states that in Virginia, citizens cannot be compelled to purchase health insurance against their will. It is in direct conflict with the federal health-care bill, and we have filed a lawsuit to defend it.

(This conflict can be expeditiously heard in a federal court in Virginia, which is why Virginia has not joined the other states suing in Florida. We fully support their lawsuit, and we have offered assistance in the form of shared research and an amicus brief to the Florida court on their behalf. We welcome the same from them.)

Virginia's challenge to the health-care bill is not just about buying insurance. It is about the limits of the power of the federal government and its relationship to citizens. Ultimately, it is about liberty itself.

- Kenneth T. Cuccinelli II, Attorney General of Virginia