Eight years ago, Sen. Orrin Hatch argued in a Senate Finance Committee then controlled by Democrats that Congress does not have the constitutional power to order people to buy things.
The committee was discussing the incipient Obamacare bill. It’s most outrageous element: The so-called “individual mandate,” which would force Americans to purchase health insurance.
Hatch did not believe the Constitution’s Commerce Clause — which gives Congress the power to “regulate Commerce with foreign nations, and among the states” — could be stretched to give the federal government the power to compel individuals to do this.
“Rather than regulate what people have chosen to do,” said Hatch, “it would require them to do something they have not chosen to do at all.”
The Obamacare bill, he said, “would have Congress boldly go where we have never gone before, at least as far as I can see, in the history of our country.
“If we have the power simply to order Americans to buy certain products,” Hatch said, “why did we need a Cash-for-Clunkers program or the upcoming program providing rebates for purchasing energy appliances? We could simply require Americans to buy certain cars, dishwashers or refrigerators.”
“Or” — as this column, commenting on Hatch’s statement, noted at the time — “broccoli, or carrots, or ‘medical marijuana’ for that matter.”
From the founding of this country until Obamacare was enacted in 2010, the federal government had never forced Americans to buy any product.
But that law — pushed through a Democrat-controlled Congress by a Democratic president — did include the “requirement” that individuals “shall” buy health insurance and would be charged a “penalty” if they did not.
The Obama administration argued all the way to the Supreme Court that the Commerce Clause did indeed give the federal government the power to enforce this mandate on individuals.
In an infamous opinion, Chief Justice John Roberts concluded that the Commerce Clause did not give Congress the power to force people to buy health insurance, but the Constitution did give Congress the power to impose taxes.
He concluded that Obamacare’s requirement that people “shall” buy insurance was not actually a mandate, and that the “penalty” imposed for violating that non-mandate was really a “tax.”
In essence, Roberts speciously argued that Obamacare’s “individual mandate” was a choice: You could buy health insurance or pay the penalty “tax.”
Once the federal government had established this new power to force people to buy things, the next question was: What should it force people to buy?
Under Obamacare, Americans not only lost their freedom of choice on whether to enter the health insurance market, they lost their freedom of conscience on what type of health insurance coverage to buy. The Obama administration issued a regulation requiring health insurance plans to cover all Food and Drug Administration-approved contraceptives. These included abortion-inducing drugs and devices.
Thus, Obamacare forced Americans not merely to buy insurance but to buy insurance that paid for the killing of innocent human beings.
This week, Senate Majority Leader Mitch McConnell indicated that the Republican tax reform bill that is moving through the Senate Finance Committee, where Sen. Hatch is now chairman, will include language repealing Obamacare’s individual mandate.
The Congressional Budget Office has estimated that repealing the mandate will save the government $338 billion over 10 years. That is money that can be used to expand the tax cuts in the Republican plan and make sure that middle-class families are not hit with a tax increase by the bill.
Repealing the mandate will save this money because it will reduce the number of people dependent on the government. Fewer people will get federal subsidies to buy health insurance. Fewer will be enrolled in Medicaid.
But the most important result of repealing the mandate is that it will restore a freedom the federal government had no right to curtail.
The Constitution does not give the federal government the power to force individuals to buy health insurance or any other product.