An argument frequently used by health care reform supporters is that since we have to buy car insurance, the requirement should also extend to buying health insurance. Those against this health care reform bill would retort with “yea, but you don’t have to buy the car” but it didn’t explain the legal footing for it.

I read a rather lengthy piece written by Sen. Orrin Hatch (R-Utah). Hatch points out that federal government can regulate commerce, but cannot force people to participate in commerce. The car insurance is a regulated aspect of the voluntary purchase of a car. Likewise, we cannot be forced to purchase health insurance and we cannot be fined for not participating in it.

Here’s how Hatch explained it.

The Congressional Budget Office examined the 1994 healthcare reform legislation, which also included a mandate to purchase health insurance. Here is the CBO’s conclusion: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy a particular good or service….Federal mandates typically apply to people as parties to economic transactions, rather than members of society.”

In other words, Congress can regulate commercial activities in which people choose to engage, but cannot require that they engage in those commercial activities.

Hatch continues,

If there is no difference between regulating and requiring what people do, if there is no difference between incentives and mandates, if Congress may require that individuals purchase a particular good or service, why did we bother with the Cash for Clunkers program? Why did we bother with the TARP or other bailouts? We could simply require that Americans buy certain cars or appliances, invest in certain companies, or deposit their paychecks in certain banks. For that matter, we could attack the obesity problem by requiring Americans to buy fruits and vegetables.

Some say that because state governments may require drivers to buy car insurance, the federal government may require that everyone purchase health insurance. Simply stating that point should be enough to refute it. States may do many things the federal government may not, and if you do not drive a car, you do not have to buy car insurance. This legislation would require individuals to have health insurance simply because they exist, even if they never see a doctor for the rest of their lives.

The defenders of this health insurance mandate must know they are on shaky constitutional ground. The bill before us now includes findings which attempt to connect the mandate to the Constitution. I assume that they are the best arguments that this unprecedented and novel mandate is constitutional.

Hatch continues shooting holes in Reid’s bill by pointing to the unconstitutional aspects of “excise tax on high cost employer-sponsored insurance plans differently in some states than in others. ”

The Constitution allows Congress to impose excise taxes, but requires that they be “uniform throughout the United States.” This is one of those provisions that will be dismissed with pejorative labels such as archaic by those who find it annoying. But it is right there in the same Constitution that we have all sworn that same oath to protect and defend and we are just as bound to obey it. And frankly, a good test of our commitment to the Constitution is when we must obey a provision that limits what we want to do.

As if the above constitutional nails were not enough to seal the coffin on Reid’s health care bill, Hatch moves on to the subject of states rights with regard to the limitation of federal powers upon individual states.

Others have observed that the legislation requires states to establish health benefit exchanges. It does not ask, cajole, encourage, or even bribe them. It simply orders state legislatures to pass legislation creating these health benefit exchanges and says that if states do not do so, the Secretary of Health and Human Services will establish the exchanges for them.

But as the Supreme Court said in FERC v. Mississippi in 1982, “this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations.” The Supreme Court reaffirmed a decade later in New York v. United States that “The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” In that case, the Court struck down federal legislation that would press state officials into administering a federal program.

And more recently, in Printz v. United States, the Supreme Court stated: “We have held, however, that state legislatures are not subject to federal direction.” And yet, this legislation does what these cases said Congress may not do. It commands states to pass laws, it regulates states in their capacity as states, and it attempts to make states subject to federal direction.

In its present form, it would appear Harry Reid’s health care bill (actually, it’s an insurance reform bill) is dead on arrival.

Orrin Hatch spoke the above on the Senate floor December 11, 2009.

You can watch Orrin Hatch speak on the issue, followed by Randy Barnett,
Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, who also speaks on the unconstitutional aspects of the health care bill.