Below is the full text of a memo sent from Bill McCollum, the Florida Attorney General, to the House and Senate Leadership. I’ve bolded a few items that I feel should concern all Americans, not just one particular ideology. You should always keep in mind when supporting specific legislation that there is no such thing as a permanent majority in the United States.
You may trust our current leadership with these massive new powers but, the law will still be in effect when the next administration comes into power. How comfortable are you with that?
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State of Florida
Bill McCollum
ATTORNEY GENERAL
January 19, 2010
Constitutional Analysis of the Individual Mandate in the Federal Health Care Legislation Florida Attorney General Bill McCollum
This legal analysis is of the constitutionality of the individual mandate provisions contained in the health care legislation as passed by the U. S. Senate (H. R. 3590 as amended) and the U. S. House (H. R. 3962). Congress’s unprecedented mandate on every citizen to purchase health insurance coverage or to face a penalty raises serious constitutional concerns. The U. S. Constitution enshrines a form of limited government to protect the rights of the states under a system of federalism and to protect the individual freedom of our citizens. The health care individual mandate provisions as currently drafted violate constitutional principles and lack constitutional authority for congress to enact.
I. The U. S. Constitution grants no authority to Congress to compel citizens to purchase health insurance when those citizens choose not to enter the health care market.
Never before has Congress compelled Americans, under threat of government fines or taxes, to purchase an unwanted product or service simply as a condition of existing in this country (a “living tax”). Congress does not possess the constitutional authority to enact such a requirement. The U. S. Supreme Court long ago recognized that the “powers of the legislature are defined and limited; and those limits may not be mistaken, or forgotten.” Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803)(Marshall, C. J.). “Every law enacted by Congress must be based in one or more powers enumerated in the Constitution.” United States v. Morrison, 529 U.S. 598, 607 (2000).
A. Congress lacks Commerce Clause authority to enact the individual mandate.
The Senate bill (H. R. 3590 as amended, Sec. 1501) lodges federal authority for the individual mandate within interstate commerce. Congress may “regulate” insurance-related interstate commerce and those engaging in such commerce pursuant to the U. S. Constitution’s Commerce Clause (Article I, section 8), yet compelling Americans with threat of sanctions to affirmatively enter commerce and buy insurance is altogether different. The Commerce Clause gives no authority for Congress to transform a citizen’s individual choice to be inactive in the marketplace into a compulsion to purchase apparently unwanted insurance or be penalized.
Indeed, the U. S. Supreme Court has twice in the last 15 years invalidated laws that attempted to regulate non-economic activity under the Commerce Clause, and it is unlikely the Court would permit Congress to reach even further to regulate inactivity. Congress may only regulate under its commerce power (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce (persons or things in commerce), and (3) activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995). In Lopez, the Court invalidated a law making it a crime to possess guns near a school because the commerce power could not be stretched to regulate gun possession, which “is in no sense” activity that might substantially affect interstate commerce. Id. at 567. Similarly, in Morrison, the Court invalidated a law that provided civil remedies for victims of gender-motivated crimes, because such crimes “are not, in any sense of the phrase, economic activity” that may be subject to Commerce Clause regulation. 529 U.S. at 613.
Here, as in Lopez and Morrison, Congress would be regulating and penalizing not only non-economic activity, but inactivity itself. A citizen’s choice not to buy health insurance cannot rationally be construed as economic activity, or even “activity,” to subject that inactivity to regulation under the Commerce Clause. While Congress might prefer that all citizens enter the marketplace and purchase health insurance coverage, an individual’s choice not to do so simply may not be regulated under the enumerated powers of Congress.
A number of constitutional scholars have analyzed the individual mandate and reached the same conclusion. In addition, Congress’s own non-partisan Congressional Research Service raised these concerns months ago, stating that “[d]espite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance.” Jennifer Staman & Cynthia Brougher, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, Cong. Research Serv. Report, July 24, 2009, at 3; see also Robert Hartman & Paul van de Water, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance, Cong. Budget Office Mem., August 1994 (“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States”).
Finally, expansion of the current understanding of the Commerce Clause to include the unprecedented power to regulate and penalize decisions not to engage in commerce would leave no private sphere of individual decision-making beyond the reach of federal powers. This result would make meaningless the Tenth Amendment, which reserves powers to the states and people, and it would turn the Commerce Clause into a limitless, rather than a limited, source of federal power over the choices of every citizen.
B. The individual mandate does not comport with Congress’ Taxing Power.
Beyond Commerce Clause concerns, the individual mandate, whether levied as a tax or as a tax penalty, is a capitition or direct tax that is not apportioned evenly among the states as is constitutionally required. In contrast to indirect taxes on the manufacture, sale, or use of a commodity, license, or property which Congress can levy without apportionment restrictions, the individual mandate levies a fixed per person tax directly on uninsured citizens unrelated to any taxable event or activity. Indeed, this tax applies to a citizen’s inactivity. Because it applies “without regard to property. profession, or any other circumstances” (see Hylton v. United States, 3 U.S. (3 Dall.) 171, 175 (1976)), it is a direct, capitation tax that must be apportioned by the population of each state. Bromley v. McCaughn, 280 U.S. 124, 136 (1929) (direct taxes are “forbidden” if not apportioned). Because the individual mandate fails to provide for proper apportionment, it is a constitutionally impermissible tax.
Moreover, the individual mandate wields Congress’s taxing powers in an unconstitutional manner for the purpose of penalizing in order to require the purchase of government-approved health insurance. Congress may not compel action by passing laws “so coercive as to pass the point at which pressure turns into compulsion” in areas it cannot otherwise regulate. South Dakota v. Dole, 483 U.S. 203, 211 (1987)(citing Steward Machine Co., 301 U.S. at 590). In Bailey v. Drexel Furniture Co., 259 U.S. 20, 39 (1922), for instance, the Court invalidated a child labor tax law that used a tax penalty “to coerce people of a state to act as Congress wishes them to act.” In United States v. Butler, 297 U.S. 1 (1936), the Court struck down a tax on processors of farm products that was coupled with payments to induce farmers not to produce. In upholding a tax on firearms dealers, the Court in Sozinsky v. United States, 300 U.S. 506, 513 (1937), found a firearms tax not to be a penalty used as a means of enforcing an “offensive regulation.” See also Steward Machine Co., 301 U.S. at 591-93 (finding the Social Security Act not unlawfully coercive)); National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45 (1937)(construing a labor act not to compel employment agreements or to interfere with employers’ “right” to select and discharge employees). In these cases the Court recognized a limit on Congress’s use of its taxing powers to compel prescribed behavior.
In this case the individual mandate would likely fail the Court’s coercion analysis. The mandate aims to shape and control individual behavior akin to earlier invalidated schemes (1) by conditioning the tax on whether a person fails to take a prescribed action that Congress could not otherwise lawfully regulate, and (2) by admitting its goal to compel new premium payments into the private insurance system by “healthy” uninsured persons so that others can benefit from lower prices (similar to the coercive tax/benefit-shifting scheme invalidated in Butler). Thus, the individual mandate raises additional constitutional concerns because it uses the taxing power to coerce uninsured Americans into purchasing insurance coverage.
II. State challenges to the constitutionality of the individual mandate.
While affected citizens of every state may pursue judicial relief from the individual mandate provisions, states have standing to sue the federal government to protect their sovereign and quasi-sovereign interests. Massachusetts v. EPA makes clear that only one party in a federal lawsuit needs to demonstrate standing. Id. at 518 (citing Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47, 52, n.2 (2006)(“the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement”)). Thus a state would have standing to challenge a tax that violated a provision of the federal constitution that is intended to protect or benefit the states, such as those involving direct taxes and apportionment. Further, states may join in suits brought by individuals who have standing to challenge a mandate to purchase insurance or be subject to a tax penalty for not doing so.
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Consider Attorney General McCollum’s arguments and think about how leaders of the opposing party might use the precedents set forth in this legislation for other social programs. If you are a Democrat, do you want a Conservative Government using coercive taxation in an attempt to control a behavior of yours it finds undesirable?
Granting one political party new powers grants the opposing party the same powers.
Link to original Memorandum [pdf]
