The United States Supreme Court’s recent decision upholding the provision in President Obama’s healthcare legislation requiring people to purchase health insurance (the mandate) has opened up a brave new world. The court’s decision appears to be both a high-water mark for government intrusion and a low-water mark for personal choice.
Lack of insurance and access to care are grave problems crying out for innovative solutions. However, the court which decided this case apparently concluded that goal of attempting to solve those problems is justified by drastic means which someday will have serious, if unintended, consequences for individual liberty.
The mandate was necessitated by the fact that the law greatly expands the number of people covered. Thus, premiums quickly would become too expensive for everyone needing insurance unless those who don’t need or want it were forced to buy it.
The Constitution supposedly created a government of limited powers. However, if Congress can force people to buy health insurance — no matter how praiseworthy the law’s purpose or necessary the mandate is to accomplishing that purpose — what will Congress not be able to do?
Essentially, the court considered two potential sources of congressional power to determine whether the mandate is constitutional. First, the Constitution gives Congress the power to “regulate commerce” (the commerce clause). Second, it gives Congress the power to collect taxes. But there are problems with resorting to either of these provisions to support the mandate.
Had Supreme Court Justice Ruth Bader Ginsburg had her way, the court would have found even those who do not purchase a product to have engaged in commerce, so that Congress could then regulate them. Had she succeeded, by her reasoning there would be no limiting principle to restrain government action under the Constitution’s commerce clause.
The reasoning of Chief Justice John Roberts, writing for the majority, is only slightly better. Justice Roberts found that the payment to be assessed against those who do not purchase insurance is a tax rather than a penalty, contradicting numerous assertions to the contrary by Obama administration officials accompanying promises to not raise taxes on the middle class. The tax-penalty difference is crucial: Historically, courts routinely have upheld Congress’s power to tax while placing many more restrictions on its power to penalize.
It seems that the only thing which limits government’s power to tax which does not limit its ability to regulate commerce is the depth of American taxpayers’ pockets. Perhaps Americans’ only means of protest will be to vote with their feet, fleeing somewhere where tax policy is more favorable — although such locales are becoming rarer worldwide.
Chief Justice Roberts appears either to have forgotten or to have willfully disregarded the warning of his predecessor. In 1803, Chief Justice John Marshall warned that “the power to tax is the power to destroy.” As much as one may support Congress’s good motives in passing this legislation, there is grave danger in concluding that even good ends justify the questionable means the court employed in this decision. Its consequences are yet to be seen.
Ken K. Gourdin, a Tooele resident, graduated from Weber State University with a bachelor’s degree in criminal justice and is a certified paralegal.