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The Gut Feeling Guide to Constitutional Law

December 24, 2009

Messrs Rivking and Casey argue in the Wall Street Journal that the imposition of an individual mandate to buy health coverage goes beyond the federal government’s power – even if the health care bills call what is effectively a regulation a “tax”:

Taxation can favor one industry or course of action over another, but a “tax” that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule were otherwise, Congress could evade all constitutional limits by “taxing” anyone who doesn’t follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.


Since the 1930s, the Supreme Court has been reluctant to invalidate “regulatory” taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power will present the question whether there are any limits on Congress’s power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care.

The French Cowboy is not a lawyer (thank God) but here is a rule of thumb that I found rather useful: When you hear about an allegedly lawful decision and your first reaction to it is to wonder: “Do they have the right to do that?”, then I would suggest that either the answer to your question is “No” or the decision is technically lawful but based on seriously flawed premises and you would have to fix that. Since the premises in this case are the Constitution which, so far, has held up pretty well, I’d give it the benefit of the doubt and instead consider the individual mandate to be likely unconstitutional.

Either way, if in a free society a new law is made and the average Joe is flabbergasted as to who in the world invents such nonsense, it’s a pretty good indicator that the law is crap. The “Let’s force every American to buy health insurance whether they need it or want it or can afford it or not” idea falls right into that category of law.

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