We followed with interest the arguments last week before the U.S. Supreme Court concerning a challenge to the individual health insurance mandate contained in what everyone now calls Obamacare.
The law requires every American, with few exceptions, to have health insurance. Those who don't have it now, and can afford it, will be required to buy it or pay a fine -- or a tax, depending on which day the government is arguing its case.
The law's supporters say everyone must have insurance or the act's other major provisions become economically unsustainable.
At issue is whether the interstate commerce clause in the Constitution allows Congress to force people to buy a commercial product for which they have no desire. Can, as Justice Anthony Kennedy asked during arguments, the government create commerce in order to regulate it?
We agree with plaintiffs and say no.
While we think every American should provide for his or her own health care, granting Congress the power to force people into any market, even for something as seemingly benign as health insurance, is inviting future tyranny on an unlimited scale.
We recognize the government's power to regulate commerce in all sorts of ways. Heavy-handed as these restrictions may at the time seem, they require the active participation of willing buyers and sellers. The government has never pulled someone kicking and screaming into the market.
Solicitor General Donald Verrilli argued that health care is a special case that's fundamentally different from all other commerce because of its size -- one-sixth of the economy -- and because nearly everyone uses health care at some point in their lives.
He failed to articulate how the unique features of the market placed any limitations on Congress from exercising similar power in other circumstances.
When has Congress ever recognized a limit on a power it has previously exercised? Never. Look no further than the income tax.
Congress was granted the power to tax income by the 16th Amendment in 1913. Politicians assured Americans that only the rich would ever pay. And at first, that was true. The average household income in 1913 was $800 while the standard exemption for a married couple was $4,000.
But when Congress later needed more money, it simply lowered the exemption, raised the rates and expanded the reach of the tax collector. And when it wanted to promote certain social goals -- marriage, home ownership, child care, commercial investment, energy efficiency -- it used its power to tax, or not to tax, to incentivize various personal and business transactions rather than to raise revenue. Even these have required active participation on the part of the taxpayer.
Justice Kennedy observed that the mandate changes the relationship between the individual and the government in a very "fundamental way." A fundamentally bad way.
It must not stand.