For more than 10 years, the Affordable Care Act (ACA), aka Obamacare, has been the law of the land. To date, it has survived one major challenge in the U.S. Supreme Court. However, another lawsuit challenging the ACA’s constitutionality will be heard by the Supreme Court in less than a month, and this time it could be stricken down as unconstitutional—which it clearly is.
Obamacare is unconstitutional for the simple reason that it mandates that Americans purchase a product, regardless of whether or not they choose to do so. As originally written, the ACA forced Americans to purchase health insurance. If they refused to do so, they would face a monetary penalty. If they refused to pay the penalty, they would eventually land in jail.
In short, Obamacare (as originally written, more on this later) is 100 percent unconstitutional because nowhere in the Constitution does the government have the power to force “We the People” to purchase anything.
For years, Obamacare supporters have tried to obfuscate this vital point. They claim that Americans have to purchase auto insurance or homeowners insurance. Of course, this is blatantly false. One must only purchase these products if they choose to have a car or a home.
Obamacare, on the other hand, represents the first and only time in U.S. history that the federal government passed a law that literally forces every single American to purchase a product simply because the government says so.
This flies in the face of freedom. And it is and always will be unconstitutional, unless a constitutional amendment is passed that requires all Americans to purchase health insurance.
Although Obamacare supporters claim that everyone should, when they actually mean must, possess health insurance because it alleviates risk and is for the overall good of the country, this is a ridiculous argument with no constitutional credence.
Taking this line of reasoning to its logical conclusion, the government would have the power to mandate all sorts of things, as long as it is for the common good. That is nonsense. In America, the Constitution delegates the powers of the federal government, and nowhere in the Constitution does a provision exist that allows the national government to do anything close to this.
In 2012, when Obamacare was before the Supreme Court, it was upheld by a five to four ruling. According to the nation’s highest court, the law was upheld because the majority claimed the individual mandate was a tax, and under the Commerce Clause, Congress can impose taxes.
This was and is a tortured ruling. According to Obamacare as written, the individual mandate was not a tax, it was a penalty. Furthermore, citing the Commerce Clause as the underpinning to the ACA’s constitutionality would allow Congress virtually unlimited power.
As Roger Vinson, a Senior U.S. District Court Judge, wrote shortly after the ACA became law, “At issue here is the assertion that the Commerce Clause can only reach individuals and entities engaged in an ‘activity’; and because the plaintiffs maintain that an individual’s failure to purchase health insurance is, almost by definition, ‘inactivity,’ the individual mandate goes beyond the Commerce Clause and is unconstitutional. The defendants contend that activity is not required before Congress can exercise its Commerce Clause power, but that, even if it is required, not having insurance constitutes activity.”
The Obama administration’s interpretation of the Commerce Clause, as cited above, would give Congress unfettered power. That was not and is not the intention of the clause.
The Commerce Clause states, “that Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
As Vinson eloquently puts it, “the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.”
For more than 10 years, Obamacare has been the law of the land because the U.S. Supreme Court erroneously ruled that it was constitutional, under the auspices of the Commerce Clause.
Now that the individual mandate has been severed—it was zeroed out by the 2017 Tax Cuts and Jobs Act—how in the world could the Supreme Court deem it constitutional again?
Chris Talgo is an editor at The Heartland Institute.