Wednesday, September 30, 2009

President "of the People" Not "above the People"

By Jay Cost September 30, 2009

We all know that President Obama has a Republican problem, namely the 200 or so Republican members of Congress who refuse to go along with his health care reform plans. However, I think he might also be developing a republican problem. Namely, I think he is having trouble keeping his ego within the boundaries of an office that fundamentally reflects the republican quality of this country.

It is difficult to nail down precisely what "republicanism" means. It has had different meanings in different places at different times. In the United States, it conjures up the notion of self-government: the people are capable of ruling themselves, and the authority of the leaders derives from the consent of the governed, rather than some aristocratic pedigree or superior position in life.

The evidence of American republicanism is all around us. Consider, for instance, the title of address for the President of the United States. Originally, Federalists like John Adams desired a grand title, something like "His Highness." However, the simple phrase "Mr. President" was ultimately adopted.

Anybody who walks down the 1600 Block of Pennsylvania Avenue in Washington, D.C. will notice that the house of the most powerful person on the planet lacks the grandiosity that one might otherwise expect.

The first home is the residence of a republican leader. It is formal and respectable, but not grandiose. In square footage terms, your place might be larger than the President's. You might also make more money than the President. Lots of people do, seeing as how we do not pay him that much. George Washington wanted to turn down the princely sum that the First Congress was prepared to pay him for his tenure. Generally, Washington's modesty and self-restraint helped establish the republican quality the office retains to this day.

Ironically, the sense that the President is no better than any of us is a major reason why the office is so powerful, or at least why it can be. A President who appears to be of the people, rather than above them, can more easily rally them to his cause, thereby forcing the Congress to do as he likes. It is not coincidental that the first stirrings of the modern, powerful presidency can be seen in the administration of Andrew Jackson, who was thought by his opponents to be the leader of a mob.

Since he emerged on the national stage, Barack Obama has not been the model of American republicanism. This was the case during the campaign, and it continues today. Juxtapose the simple respectability of the White House with these images taken from the Obama-Biden campaign website.

This is why I was not surprised to see that video of schoolchildren being taught to praise President Obama like he is a deity. Ultimately, the campaign that President Obama waged hinted at such ideas. Is it a shock that a few, overly enthusiastic supporters thought it appropriate to proselytize in such a fashion?

That "Progress" picture is easily the most non-republican of the bunch. The image suggests that Obama's campaign is somehow a source of goodness for the people. From a republican standpoint, the imagery in the picture should be reversed, with the people being the source of goodness from which the candidate benefits.

I had hoped that the President would find his inner republican upon ascension to the office. I have been disappointed. His speeches are too full of references to himself. His omnipresence suggests a disregard for the people's tolerance levels, as well as for the idea that ours is a limited government and we are entitled to enjoy our lives without these constant executive impositions. Additionally, I share Michael Gerson's sentiments regarding his address to the U.N., which was typical of other speeches he has given to the international community:

Obama's rhetorical method in international contexts -- given supreme expression at the United Nations this week -- is a moral dialectic. The thesis: pre-Obama America is a nation of many flaws and failures. The antithesis: The world responds with understandable but misguided prejudice. The synthesis: Me. Me, at all costs; me, in spite of all terrors; me, however long and hard the road may be. How great a world we all should see, if only all were more like...me.
On several occasions, Obama attacked American conduct in simplistic caricatures a European diplomat might employ or applaud. He accused America of acing "unilaterally, without regard for the interests of others" -- a slander against every American ally who has made sacrifices in Iraq and Afghanistan. He argued that, "America has too often been selective in its promotion of democracy" -- which is hardly a challenge for the Obama administration, which has yet to make a priority of promoting democracy or human rights anywhere in the world.


There are two problems with the attitude that Gerson has correctly identified. First, it's fair to criticize the actions of the previous administration to a point, but speeches like his U.N. address often move beyond that to suggest a broader failure, one that implicates the mass public. For instance, the best rejoinder he has to those who question the "character" of his country is: "look at the concrete actions we have taken in just nine months," which he suggests are "just a beginning." This rhetoric does not befit the leader of a democratic republic, especially one as great as the United States of America. The President should be willing and able to defend the "character" of his country beyond his own, inconsequential-to-date actions.

Second, the implication here is that his administration has sanctified our character. No administration can do that in a republic because no administration possesses the moral standing to offer such a blessing. He is the equal of the people in every measure. He temporarily holds an office whose magnificence is dependent upon the goodness of the people he represents. Yet this President implies a claim to such moral superiority - in the above quoted sentence, then later on when he says: "The test of our leadership will not be the degree to which we feed the fears and old hatreds of our people." No President should suggest that his people would fall prey to fear and hatred were it not for his leadership - even if he thought this were true. And he surely should not air such "dirty laundry" to an international audience that does not understand how this country actually functions. Instead, he should claim that he leads a great people who have the wisdom and equanimity not to fall prey to such fears, and it is his hope that he can emulate them.

Ultimately, this President stands a better chance of success if he embraces the republican character of the people who imbue his temporary position with its power and majesty. The fact is that we are a republican people who tend not to think that anybody is better than we. If we begin to intuit that the President thinks he is better, it could impede his efforts to rally us to his side.

It is also a fact that staunch republicans created the presidency, and the office reflects their preferences even after 220 years of intervening history. By explicit design, the President is not a leader-for-life. Instead, he must face the judgment of his peers just 48 months after he wins the office. The Constitution endorses the view of the supremacy of the people because it delineates a timeline for when the executive power leaves the President and returns to the people (originally, as represented by the state governments). As if that were not enough, the 22nd Amendment forbids a President from seeking a third term, meaning that the people of this democratic republic will be around long after the Obama Administration has come to an end.


Thursday, September 24, 2009

Purpose of the Constitutional Process

Turning the Senate into the Chicago City Council
“Using the budget reconciliation process to pass health reform and climate change legislation…would violate the intent and spirit of the budget process, and do serious injury to the constitutional role of the Senate.”

These are not the words of a Republican or a conservative activist.

This is a warning issued on April 2 of this year from the former Democratic Majority Leader in the Senate, Robert C. Byrd (D-W.Va.).

He was referring to a dangerous assault on American freedom as it is protected by the constitutional balance of power -- an assault that is being considered by the Obama Administration right now.

“We Pour Legislation into the Senatorial Saucer to Cool It”

The Founding Fathers designed the Constitution and our government to guard against political power grabs by slowing down the process of making laws.

They insisted that the Senate had to be a deliberative body to slow down the passions of the House and stop mob rule from destroying freedom.

In a famous conversation between the two presidents, Thomas Jefferson is said to have asked George Washington why the Framers had agreed to a second chamber in Congress at the 1787 Constitutional Convention. "Why did you pour that coffee into your saucer?" Washington asked him. "To cool it," said Jefferson. "Even so," said Washington, "we pour legislation into the senatorial saucer to cool it."

The Founders Relied on the Senate to Carefully Consider Before They Commit Us to a New Law


One of the key means by which the Senate slows down the legislative process is through the filibuster.

Unlike in the House, in the Senate, even a small group of senators can hold up a bill by threatening to continuously debate it.

It takes the votes of three-fifths of the Senate, or 60 senators, to end a filibuster. This means that it effectively takes 60 votes to pass a controversial piece of legislation or nomination.

And again, this is for good reason. The Founders looked to the House to more directly reflect the will of the people. They relied on the Senate to take a step back and carefully consider a bill before they commit the American people and our resources to it.

A Revolutionary Act Worthy of a Third World Country

I have taken this brief tour of American constitutional history to make an important point: The Obama Administration clearly has concluded it cannot get a big government health plan through the Senate if they accept the traditional, historic requirement of a 60-vote majority.

It is also clear left-wing activists would cheerfully destroy the integrity of the Senate and the freedoms it protects if that is what it takes to get a government-run, bureaucratic health care system which would expand their power and increase the importance of Washington.

Senator Harry Reid (D-Nev.), the Democratic majority leader, has warned that a failure to get 60 votes would lead him to try to force through a bill with 50 senators and Vice President Joe Biden breaking the tie.

Changing one-sixth of the American economy with 50 senators voting yes would be a revolutionary act worthy of a third world country.

Senator Byrd: “Reconciliation was Intended to Adjust Revenue and Spending Levels in Order to Reduce Deficits”

The Obama Administration and Sen. Reid are considering getting around the 60-vote majority rule in the Senate by using a process called “reconciliation.” Under reconciliation, just 51 votes are required to pass a bill.

Democratic Sen. Robert Byrd, whom I quoted at the beginning of this message, has unique authority on reconciliation. Not only is he the author of a remarkable history of the Senate (four volumes published between 1989 and 1995), he was, as he wrote, “one of the authors of the reconciliation process,” which was created in 1985.

Here is what he said about using reconciliation to pass things like health care reform: “I can tell you that the ironclad parliamentary procedures it authorizes were never intended for this purpose. Reconciliation was intended to adjust revenue and spending levels in order to reduce deficits.”

Sen. Byrd concluded with this warning: “The Senate cannot perform its constitutional role if senators forego debate and amendments. I urge senators to jealously guard their individual rights to represent their constituents on such critical matters.”

For 20 Years, I Was Told to Be Patient When Conservatives Couldn’t Muster 60 Votes

For 20 years as a member of the House, I was told to be patient when conservative reforms could not muster 60 votes or a conservative nomination could not get 60 votes.

For the last decade I was told to be patient when reforms conservatives wanted and personnel conservatives wanted were blocked by the lack of 60 votes in the Senate.

Now after a lifetime of sustaining the constitutional role of the Senate, we find that the left wants to suspend the normal constitutional process so they can ram through a gigantic government run health program immediately.

Every American Who Cherishes the Institutions That Have Preserved Our Liberty Will Tell Their Senators to Fight


We are being told the Obama agenda is so important we should destroy the Senate and make it more like the House of Representatives.

This radical action may make sense to President Obama, Chief of Staff Rahm Emanuel and senior strategist David Axelrod, all of whom come from Chicago and are used to seeing the Chicago City Council muscled by a strong mayor on behalf of a machine.

However, every American who cherishes freedom and appreciates the institutions that have preserved us from tyranny will be telling their senators to preserve the integrity of the Senate and preserve the protections of American liberty.

This fight over process may turn out to be even more important than the fight over the substance of the big government, big bureaucracy, high-tax health bill they want.

When both process and policy are wrong there is something very bad going on.

Wednesday, September 23, 2009

Big Government, not Capitalism, is The Problem

Capitalism Is Not The Problem

By Walter Williams

Michael Moore's new film, "Capitalism: A Love Story" will be released next month. I've neither seen nor read reviews of the film, except for a short piece in the London Telegraph (9/6/09) titled "Michael Moore film calls capitalism evil." Aware of Michael Moore's previous films, I know that it will be at best a misleading story about capitalism. So let's do some defensive mental preparation, not about the film but what is and what is not capitalism.

Capitalism is an economic system characterized by private ownership and control over the means of production. The distribution of goods and services and their prices are mainly determined by competition in a free market. Under such a system the primary job of government is to protect private property, enforce contracts and ensure rule of law.

According to the London Telegraph article, Moore's film features priests who say capitalism is anti-Christian by failing to protect the poor. This is pure nonsense and revealed as such by asking, "If you're an unborn spirit, condemned by God to a life of poverty but allowed to choose the country in which to be poor, would you choose a country near the communist end of the economic spectrum or the capitalist end?" If you chose the United States, you'd find that according to the government surveys, the typical "poor" American has cable or satellite TV, two color TVs, and a DVD player or VCR. He has air conditioning, a car, a microwave, a refrigerator, a stove, and a clothes washer and dryer, and whether he has health insurance or not, he is able to obtain medical care when needed. Try to find that in Cuba, Russia, China or North Korea. If we buy into the nonsense of Moore's priests, the world's poor people are incredibly stupid. Whether fleeing legally or illegally, their destination country is likely to be closer to capitalism than their departure country.There has never been a pure free market capitalistic system just as there has never been a pure communist or socialist system, where there is government ownership of the means of production and each individual has equal access to society's resources. However, we can rank economies as to whether they are closer to capitalism or closer to communism or socialism. If one ranked countries according to whether they were closer to the capitalistic end of the spectrum or the socialistic or communistic end, then ranked countries according to per capita GDP and finally rank countries according to Freedom House's "Map of Freedom in the World," he would find a pattern that is by no means a coincidence. The people in those countries closer to the capitalist end of the economic spectrum have far greater income and enjoy greater human rights protections than those toward the socialist and communist end.

Most of our country's serious problems can be laid at the feet of Congress and the White House and not at capitalism. Take the financial crisis. One-third of the $15 trillion of mortgages in existence in 2008 are owned, or securitized by Fannie Mae, Freddie Mac, Ginnie Mae, the Federal Housing and the Veterans Administration. Banks didn't mind making risky loans and Wall Street buyers didn't mind buying these repackaged loans because they assumed that they would be guaranteed by the federal government: read bailout by taxpayers. Under a capitalist system, financial institutions would not have been intimidated or encouraged into making risky loans and neither would they have been bailed out if they did so.

Social Security, Medicare and its coverage of prescription drugs have an unfunded liability that exceeds $100 trillion. When those roosters come home to roost, they will make the financial meltdown we've been though look like child's play.

Not withstanding all of the demagoguery, it is capitalism not socialism is that made us a great country and its socialism that will be our undoing.

Government Healthcare - Hazardous to Health & Wallet

Baucus Blunders

Senate Finance Committee Chairman Max Baucus has finally achieved broad bipartisanship with his new health overhaul plan. Nobody else has been able to unite 99 Senators behind any idea in health reform. But Baucus has managed to do just that, with 99 Senators unified behind the idea of NOT supporting his plan.

The plan is carefully crafted to scare away anyone interested in good public policy or just good politics (read re-election). The Baucus bill is grossly underestimated to cost almost $1 trillion in new spending, all financed by higher taxes on health care and health insurance, particularly union health plans, and Medicare cuts for senior citizens, while still leaving at least 25 million uninsured according to the CBO. It still provides for a government takeover of health care and the bureaucratic structure for government rationing of health care, increasing rather than lowering health costs overall.

What is most instructive about the bill is that it shows why Republicans and conservatives cannot support anything like what President Obama and the Democrats are talking about on health care. Below are the features of the Baucus plan that no Republican or conservative could possibly support, even though it is too "moderate" for the rest of the Democrat party.

Higher Health Costs

The Baucus plan is carefully structured to raise health costs for everyone, federal, state and local governments, businesses, and families. The CBO estimates it will raise federal spending by almost $1 trillion over 10 years, but the bill's spending would mostly be operational for only 6 of those years. That means the true 10-year cost once it is fully phased in would be closer to $2 trillion.

Health insurance prices will soar under the Baucus bill. One reason is that the government will force everyone to buy the health insurance coverage that the government insists you must have, which will include all the politically correct benefits like coverage for abortion that altogether add up to big costs. Insurance is also required to cover anyone who shows up no matter how sick they are and how expensive their health care will be (called guaranteed issue), and they can't be charged more for that coverage just because they may need highly expensive care (called community rating), which will raise insurance costs even more. The government will also limit the deductibles, co-payments, and out of pocket costs that people can choose for their health insurance. The Council for Affordable Health Insurance (CAHI), which includes some of the smartest free market economists on health care in the country, estimates that these factors alone would cause health insurance premiums to almost double.

Over 50 years old, I currently enjoy a health insurance plan with a $10,000 annual deductible that costs me under $260 a month. That's about $3,000 a year, and that is all I need because it protects me against the high costs of serious illness. But when President Obama and his socialist Democrats get done helping me, my insurance will probably cost more than twice that, which I will be compelled to pay for under threat of force.

The new taxes on health care and insurance in the Baucus bill will also increase health costs. The bill imposes a tax on higher cost health plans, mostly union health plans, equal to 35% of the cost above $8,000 for individuals and $21,000 for families. But those thresholds are indexed only to grow with general inflation, not health costs. So over time, more and more health plans will be subject to the tax. After just 10 years, the most popular plans in the Federal Employee Health Benefits program will be subject to a tax of almost $1,000 a year. This indicates that average health plans will be paying such a tax burden by that time. These higher costs will be paid by workers and employers.

But the bill includes another tax on all health insurance plans as well that has been overlooked, further increasing costs. Additional taxes are imposed on prescription drugs, medical devices, and clinical labs. All of these will mean higher costs for workers and their insurance plans. Employers who do not provide the government mandated health insurance will pay an additional tax of $400 for each worker eligible for government assistance to buy such insurance on his own. This will further increase costs for employers and cause some low and moderate income workers to lose their jobs.

A bigger impact than any of this will be the effect of incentives from the bill in increasing the demand for health care. With the government or insurance companies paid in part by the government paying the bill, consumers will have every incentive to demand more and more health care. This increased demand will just raise health care prices, meaning higher insurance costs as well.

Runaway Entitlements

The Baucus bill provides for a ridiculous runaway explosion in entitlement spending. Medicaid is already projected to cost almost $5 trillion over the next 10 years, reaching $674 billion for 2017. Yet the bill sharply expands Medicaid to everyone up to 133% of poverty, include childless adults not previously covered under the program.

Worse is a new middle class entitlement in the bill providing government subsidies to buy health insurance to everyone with incomes up to 400% of poverty, which is $88,000 for a family of four. Have Mr. Baucus and his fellow left-wing Democrats who think even his bill is not enough not heard of the long-term entitlement crisis? Are they completely ignorant of the long-term budget projections showing we can't even pay for the entitlement overpromises we have already made? The unfunded liabilities for Social Security and Medicare are now over $100 trillion, while our entire economy only produces $14 trillion a year, and that will be declining even more soon enough unless the current socialist reign of error in Washington is ended.

No they are not ignorant and yes they have heard of the entitlement crisis. After next year's midterm elections their plan will to suddenly be to announce, "Oh, my gosh, these long-term deficits are completely unacceptable." The establishment media will echo with wise Washington greybeards intoning that of course the only responsible course is massive, unprecedented tax increases, to Swedish socialist levels and beyond. Most Congressional Democrats secretly harbor dreams of returning to the glory days of 90% top income tax rates, placing a socialist cap on success in America.

Block grant Medicaid and SCHIP back to the states like we did so successfully in 1996 for AFDC, they'll say, and let each state design a true safety net to make sure no one suffers without essential health care. In their view, the federal government along with the states can spend enough to make sure that the uninsured that truly can't afford basic health insurance have the money they need to do so. But no Republican, conservative, or any grown-up who can count can support the massive entitlement spending increases in the Baucus bill, or the other Democrat health overhaul plans.

Higher Taxes, Higher Deficits

The Baucus bill provides for $350 billion in new taxes, all focused on health care, which, again, will raise health costs. This includes taxes on prescription drugs and "medical devices" including condoms, tampons, contact lenses, contact lens solution, hearing aids, home pregnancy tests, and blood glucose monitors to control diabetes. Last year when asking for our votes Democrats promised us they would not raise taxes "in any form" on people earning less than $250,000 per year. They were just going to rob from "the rich" to pay for merry making by the rest of us. They apparently do not know that condoms, tampons, contact lenses and hearing aids are used by people making less than $250,000 per hear, some of whom have diabetes. Or maybe they were lying. There is no honor among thieves.

In a letter to Baucus, Democrat Senators Amy Klobuchar, Evan Bayh, and Al Franken, including Republican Richard Lugar, write regarding the medical devices tax:

Recent independent estimates indicate that this tax could translate into an annual income tax surcharge of between 10% and 30% on medical device manufacturers. The amount of capital that these companies would have available to reinvest n product development and innovation would be threatened, dramatically reducing both the number of jobs in the industry and the types of devices available to patients….[W]e are concerned that this tax will stifle technological innovations that can improve patient outcomes and lower health costs.

Amen. So true. They can really think when they want to.

Workers who do not obtain the government mandated health insurance plan will have to pay a special tax of $750 to $950, or $1,500 to $3,800 per family, depending on income, another violation of the pledge not to raise taxes on the middle class. Employers not providing the government required health insurance will have to pay an additional tax of $400 per worker, as specified above.

Anyone, including Blue Dog Democrats, who took the Americans for Tax Reform Pledge not to raise taxes cannot vote for this bill without breaking faith with voters. For those Blue Dogs who refused to take the Pledge, now you can see what they had in mind.

CBO scores the Baucus bill as not increasing the deficit. But this is a fantasy, because the CBO fails to consider how the Baucus taxes will change behavior. The score assumes that most of the increased tax revenues, $215 billion, will come from the tax on high cost health plans. But employers will negotiate with their unions to avoid that tax, and it will not generate nearly that much. The rest of the tax revenues would come from working people and their employers, and they will fall short as well.

On the spending side, the government notoriously estimated in 1965 that Medicare would cost $12 billion in 1990. When 1990 came around, it actually cost $110 billion, 9 times as much.

Medicare Cuts

Senator Baucus provides for almost $400 billion in Medicare cuts in his bill. This includes $123 billion in cuts to Medicare Advantage. Almost one-fourth of seniors, about 10 million, have chosen the private insurance options in Medicare Advantage for their Medicare coverage because they get better benefits than through standard Medicare. (Note: I published an article over 20 years ago in The Yale Law and Policy Review proposing what has become Medicare Advantage). The insurance company Humana quite rightly wrote in a letter to its policyholders recently that because of these cuts, "millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage plans so valuable."

That understates the case, because with over $100 billion in cuts for such plans, seniors will lose a lot of the benefits they enjoy from Medicare Advantage today. Reflecting the outright fascism that is always just below the surface with "liberal" Democrats, Baucus complained to the Centers for Medicare and Medicaid Services (CMS) about this Humana letter. CMS ordered Humana to cease and desist, lamely claiming in old Soviet style fashion that the letter was "misleading and confusing," and opening a federal investigation threatening "compliance and enforcement actions."

The Wall Street Journal reported yesterday, "Nearly half of Humana's yearly revenue comes from Medicare Advantage" and "Humana could be fined or booted from Medicare Advantage altogether" just for exercising its free speech to tell the truth. But Baucus in a press release lauded this CMS action, saying:

It is wholly inappropriate for insurance companies to mislead seniors regarding any subject -- particularly on a subject as important to them, and to the nation, as health care reform….The…bill we released last week strengthens Medicare and does not cut benefits covered under the Medicare program….

But besides the cuts to Medicare Advantage, the Baucus bill includes almost $200 billion in additional Medicare cuts involving, as CBO explained, "[p]ermanent reductions in the annual updates to Medicare's payment rates" to doctors and hospitals for the services they provide to seniors. That will result in cutbacks by doctors and hospitals in the services they provide to seniors, the start of the health care rationing in the bill. The Baucus bill also creates a Medicare Commission of unelected bureaucrats with the power to adopt still more Medicare cuts in the future.

As the Journal concluded regarding the government's scandalous mistreatment of Humana, "This episode neatly shows how all U.S. health care will operate if Mr. Baucus's bill becomes law." But that is an overly polite understatement of the ugly reality. What the episode shows is that AMERICA IS NO LONGER A FREE COUNTRY while these left-wing extremist Democrats are in power.

Co-Op Foolishness

The Baucus bill also includes $6 billion in start-up funds "to establish health care cooperatives that would provide insurance coverage and operate as non-profit organizations," as the CBO explains. This is in service to the left-wing notion that insurance company profits are the problem in health care. But such profits are a negligible factor in health costs. As economist John Lott explains, "The Kaiser Foundation estimates that self-insured companies covered about 75 million out of 137 million workers in 2008." In the remaining market, Lott continues:

[T]he dominant players…are non-profits….In state after state, Blue Cross and Blue Shield hold the largest market share. On average, the largest non-profit holds over half of the "full" market share in…29 states. Why add another non-profit to the mix? Getting rid of profits would not make costs go down. They would go up, because without profits there would no longer be the same incentive to hold down costs. Profits are the reward firms get for figuring out what consumers want.

The other big problem in the Baucus bill is that it provides the foundation for government rationing of health care. This is done through bureaucracies granted the power to make decisions regarding "comparative effectiveness," which involves the government deciding what medical treatments work and what don't (as if faraway government bureaucrats are going to know better than your own doctor), "cost effectiveness," which involves whether particular medical treatments are worth the cost (as if the government can really make judgments about that either), and whether or when new medical technologies and breakthroughs can be adopted and implemented. When legislation talks about "quality," that is often defined to include cost control, meaning ultimately rationing.

The Baucus bill is hazardous to your health, as well as your wallet.

Peter Ferrara is director of entitlement and budget policy at the Institute for Policy Innovation, and general counsel of the American Civil Rights Union. He served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under the first President Bush. He is a graduate of Harvard College and Harvard Law School.

Friday, September 18, 2009

Proposed Healthcare Plan Unconstitutional

Mandatory Insurance Is Unconstitutional

Why an individual mandate could be struck down by the courts.

Federal legislation requiring that every American have health insurance is part of all the major health-care reform plans now being considered in Washington. Such a mandate, however, would expand the federal government’s authority over individual Americans to an unprecedented degree. It is also profoundly unconstitutional.

An individual mandate has been a hardy perennial of health-care reform proposals since HillaryCare in the early 1990s. President Barack Obama defended its merits before Congress last week, claiming that uninsured people still use medical services and impose the costs on everyone else. But the reality is far different. Certainly some uninsured use emergency rooms in lieu of primary care physicians, but the majority are young people who forgo insurance precisely because they do not expect to need much medical care. When they do, these uninsured pay full freight, often at premium rates, thereby actually subsidizing insured Americans.

The mandate's real justifications are far more cynical and political. Making healthy young adults pay billions of dollars in premiums into the national health-care market is the only way to fund universal coverage without raising substantial new taxes. In effect, this mandate would be one more giant, cross-generational subsidy—imposed on generations who are already stuck with the bill for the federal government's prior spending sprees.

Politically, of course, the mandate is essential to winning insurance industry support for the legislation and acceptance of heavy federal regulations. Millions of new customers will be driven into insurance-company arms. Moreover, without the mandate, the entire thrust of the new regulatory scheme—requiring insurance companies to cover pre-existing conditions and to accept standardized premiums—would produce dysfunctional consequences. It would make little sense for anyone, young or old, to buy insurance before he actually got sick. Such a socialization of costs also happens to be an essential step toward the single payer, national health system, still stridently supported by large parts of the president's base.

The elephant in the room is the Constitution. As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: "[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects." Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution.

These are mostly found in Article I, Section 8, which among other things gives Congress the power to tax, borrow and spend money, raise and support armies, declare war, establish post offices and regulate commerce. It is the authority to regulate foreign and interstate commerce that—in one way or another—supports most of the elaborate federal regulatory system. If the federal government has any right to reform, revise or remake the American health-care system, it must be found in this all-important provision. This is especially true of any mandate that every American obtain health-care insurance or face a penalty.

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such "activities, taken in the aggregate, substantially affect interstate commerce."

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Of course, a health-care mandate would not regulate any "activity," such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Health-care backers understand this and—like Lewis Carroll's Red Queen insisting that some hills are valleys—have framed the mandate as a "tax" rather than a regulation. Under Sen. Max Baucus's (D., Mont.) most recent plan, people who do not maintain health insurance for themselves and their families would be forced to pay an "excise tax" of up to $1,500 per year—roughly comparable to the cost of insurance coverage under the new plan.

But Congress cannot so simply avoid the constitutional limits on its power. 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.

This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate. The Constitution's Framers divided power between the federal government and states—just as they did among the three federal branches of government—for a reason. They viewed these structural limitations on governmental power as the most reliable means of protecting individual liberty—more important even than the Bill of Rights.

Yet if that imperative is insufficient to prompt reconsideration of the mandate (and the approach to reform it supports), then the inevitable judicial challenges should. 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.

Messrs. Rivkin and Casey, Washington D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

Printed in The Wall Street Journal, page A23

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