By Doug Bandow
Resisting encroachments from the federal government is never easy. Virginia Attorney General Ken Cuccinelli is one of the state attorneys general who is suing the federal government to block ObamaCare.
There are very good reasons that the federal government has never, in the last 221 years, used the Commerce Clause of the Constitution as a vehicle for requiring citizens to purchase goods or services from other citizens.
The first is textual. Article I, Section 8 of the Constitution provides that “the Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States.” Although there have been disputes about just how far this should reach into commerce that is entirely intrastate, until now, it has been recognized that this constitutional provision deals with regulation of commerce – that is, with the use of law to impose reason and order on the voluntary commercial actions of citizens, as well as on activities that substantially affect commerce. An individual mandate to purchase health insurance is not regulation in that sense.
Another good reason this has not been done before is that it turns the Commerce Clause into an alternative, off-books funding mechanism. According to the “findings” section of the law itself, the mandate achieves economies of scale, but in reality, it achieves income redistribution. The law caps the amount that insurance companies can charge based on age, and forbids them to exclude those with pre-existing conditions. As such, the young and healthy people the law forces to buy insurance are overcharged for the purpose of subsidizing the old and those with pre-existing conditions.
Virginians who believe in individual liberty should back AG Cuccinelli’s efforts and send him a warm congratulations for standing up for the Constitution and limited government