A congressional analyst says the Founding Fathers would be appalled to learn that for the first time in history, the federal government was going to mandate that all Americans purchase health insurance.
The “individual responsibility” provision in Section 1501 of the Senate healthcare bill (H.R. 3590) requires anyone who fails to buy a “qualifying” health insurance plan to pay an annual tax penalty of $750 per adult family member and $375 per child, or up to a maximum penalty of $2,250 per family.
Brian Darling, director of Senate relations at The Heritage Foundation, says the individual mandate may violate the U.S. Constitution.
“The insurance industry now will have a federal mandate that everybody has to use their product, so you can look at the insurance industry as a whole as a beneficiary of this bill because all Americans will be mandated to buy that product, to be a service, which is unprecedented in our country,” he contends. “And it may be unconstitutional to allow the federal government to mandate that people buy a certain product. I can’t imagine our Founding Fathers wanted to empower a limited federal government to do what they’re doing right now.”
The House version of the healthcare bill also requires all Americans to purchase health insurance or pay a penalty. Under that legislation, if American citizens fail to pay that penalty, they could face up to a year in jail.
In a legal memorandum published earlier this month, The Heritage Foundation charges that the individual mandate outlined in the legislation “takes congressional power and control to a striking new level.”
“Its defenders have struggled to justify the mandate by analogizing it to existing federal laws and court decisions,” says that memorandum, “but their efforts do not withstand serious scrutiny. An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented — not just in scope but in kind — and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”
Heritage suggests that if the constitutionality of the individual mandate is put to the test, it is “very unlikely” that the Supreme Court would either extend current constitutional doctrines, or devise new ones, to uphold “this new and unprecedented claim of federal power.” The memo also accuses sponsors of the current healthcare bills of using a “gimmick” to make the personal mandate appear to revenue-enhancing instead of an unconstitutional tax.
