The Heritage Foundation and the American Center for Law & Justice (ACLJ) recently released legal analysis calling into serious question the constitutionality of the Congress’s plan to force all citizens to purchase health insurance.  These conservative institutions argue that the unprecedented idea, a mandate that all Americans be forced into a contractual agreement with a private party for health insurance, is not a constitutionally permissible activity by the federal government.  My sources tell me that this issue will be raised during the Senate debate on ObamaCare very soon and may open another front in the war against ObamaCare. 

The Heritage Foundation argues that the federal government has never required all Americans to buy any good or service.  The individual heath insurance mandate is truly unprecedented.

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 — an unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.

One of the goals of our Founding Fathers was to set up a federal government with limited powers.  Article 1 of the Constitution gives Congress powers and some powers “remain beyond Congress’s reach.”

Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and, as this paper will explain, no decision or present doctrine of the Supreme Court justifies such a claim of power.

The proponents of expansive federal power hang their hat on the “Commerce Clause” for Congress’s authority to mandate health care insurance for citizens.

Proponents of the individual mandate are contending that, under its power to “regulate commerce…among the several states,” Congress may regulate the doing of nothing at all!  In other words, the statute purports to convert inactivity into a class of activity.

Voting is not mandated, but under this precedent, one could argue that the federal government could force citizens to vote against their will.  Under the big government line of reasoning, the federal government could have tossed aside Cash for Clunkers, the failed government program to give away billions in subsidies to spur the purchasing of cars, and mandate that citizens buy a car from an American car company of their choice.  Would this precedent allow the feds to say that you shall buy insurance and you shall buy it from a certain company?  If this mandate is allowed to stand, it would “be the first use of the Commerce Clause to universally mandate an activity by all citizens of the United States.”

The most common argument used to justify a federal mandate to purchase health insurance is the talking point that states are allowed to force individuals to buy car insurance before they are allowed to drive.  “There is a fundamental constitutional difference between the inherent police powers of the states and the enumerated powers of the national government.”  Not to mention that driving is a voluntary activity, therefore you don’t have to have auto insurance if you don’t have a car.  Something I didn’t realize until I read the paper is that “states require drivers to maintain auto insurance only to cover injuries to others.”  The analogy between a state mandating auto insurance for those who drive and mandatory health insurance for those who choose not to purchase it is not a good one for the three reasons mentioned above.

Some, like Ruth Marcus of the Washington Post, don’t think this mandate is a big deal.  Others like Hans von Spakovsky at NROnline think the mandate is a dangerous precedent.

If Congress can impose a health-insurance mandate, then there is no limit to what Congress can do, and the Constitution’s limits on congressional power will have essentially been eliminated. As Will Rogers once said, with Congress, every time they make a joke it’s a law, and every time they make a law it’s a joke. Unfortunately, none of us will be able to laugh over this pending abuse of power.

There are thousands of reasons to hate the Senate version of ObamaCare, yet the issue over the constitutionality of the mandate has yet to receive serious consideration.  Lovers of small, limited government hope that sanity prevails with the 100 elites making decisions about the future of health care right now in the United States Senate, yet we have minimal confidence that they will end up doing the right thing.  Maybe Senate Majority Leader Harry Reid’s new compromise, dropping the public option with a limited expansion of Medicare, will not convince enough of his caucus to pass ObamaCare and America will receive a temporary reprieve from those in Congress who love big government and hate private enterprise.

The bottom line is that if a Senator raises a constitutional point of order against the individual mandate or a Senator requests that the Courts review the issue, then the Senate will finally debate one of the fundamental questions that the Senate, and the House for that matter, should consider every time they review a piece of legislation.  Is the legislation permitted under the United States Constitution?  Many would argue that the invididual mandate in ObamaCare fails to pass that test.

As reported earlier, the poll began with the same question tested earlier by the Washington Post. Even with this neutral phrasing, likely voters were opposed 48-45%. As the questions became more detailed, however, opposition grew and any support collapsed. Below are the detailed questions and results. These should give serious pause to ObamaCare proponents pushing for quick legislation action.

Based on what know, do you favor or oppose a “public option” health insurance plan?  (Asked only of those who were aware of the debate over a public option.)

Total Favor      39%

Total Oppose   53% 

Would you favor or oppose having the government create a new health insurance plan to compete with private health insurance plans if you knew the total cost for this health care reform plan would be $900 billion dollars? 

 Total Favor      25%

Total Oppose   67%

Would you favor or oppose having the government create a new health insurance plan to compete with private health insurance plans if you knew it would cut Medicare benefits for Senior Citizens by $500 billion dollars? 

 Total Favor      15%

Total Oppose   78%

Would you favor or oppose having the government create a new health insurance plan to compete with private health insurance plans if you knew you could be forced off your current health insurance and onto the government-run plan? 

 Total Favor      17%

Total Oppose   75%

 Would you favor or oppose having the government create a new health insurance plan to compete with private health insurance plans if you knew that there was no guarantee that you could keep your current doctor? 

 Total Favor      20%

Total Oppose   75%

Would you favor or oppose having the government create a new health insurance plan to compete with private health insurance plans if you knew that it could limit the treatments and medications you could have access to?  

Total Favor      16%

Total Oppose   80%

Would you favor or oppose having the government create a new health insurance plan to compete with private health insurance plans if you knew that it would raise taxes nearly $400 billion dollars? 

 Total Favor      21%

Total Oppose   73%

The poll was conducted by Fabrizio, McLaughlin and Associates. It was conducted October 27-29 of 1,000 voters who said they were likely to vote in 2010.

The poll also asked how legislators votes on these issues would impact their vote in 2010. Check back later today for those results. Also, the poll added an oversample of 400 likely voters in BOTH the 13 Senate and 47 House races ranked most competitive by the Cook Report. Results in those are interesting. Check back for those and the full top-line results as well.