"Individual Mandate" at Core of ObamaCare is Unconstitutional

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Posted: Mar 01, 2010 11:52 AM
Guest post from the National Center for Public Policy Research.

Arguments by backers of President Obama's health care proposals that the U.S. Congress has the constitutional authority to mandate that individual Americans purchase health insurance through the 16th Amendment to the Constitution, which permits the federal income tax, are incorrect.

So concludes a new "What Conservatives Think" publication, "Is a Health Insurance "Individual Mandate" Constitutional?" written by policy analyst Matt Patterson of the National Center For Public Policy Research.

Among the findings:

* Both the House and Senate versions of ObamaCare contain penalty taxes on Americans who do not have government-approved health insurance, the so-called "individual mandate."

* Such a tax would function as a direct, or capitation, tax, as opposed to a tax on activity, such as excise or income taxes, and would therefore fall outside Congress' authority to tax income granted by the 16th Amendment to the Constitution.

* The Constitution places strict restrictions on Congress' power to lay capitation taxes under But Article I, Sec. 9, which reads "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

* Exemptions for some people built into the Senate bill's individual mandate tax would make it impossible for ObamaCare to meet this strict constitutional standard.

Says Patterson, "Some of the finest legal minds in the country have concluded that the enforcement provisions of ObamaCare's individual mandate would violate the both spirit and the letter of the U.S. Constitution.  Apparently, President Obama and members of Congress think they are smarter than these scholars - and smarter than the authors of the Constitution."

"Is a Health Insurance "Individual Mandate" Constitutional?" is available online here.