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How the consumer mandate shouldn't be unconstitutional - and how it might be

April 15, 2010 - Mike Maneval

Part of the backlash against passage of the health care reform package is a law suit filed by Florida state Attorney General Bill McCollum, joined by Pennsylvania's Attorney General Tom Corbett and the attorneys general of several other states. The suit, Brendan Farrington of the Associated Press reported in late March, claims the legislation violates the tenth amendment. The Web site for WOKV radio in Jacksonville says a U.S. district judge could fast-track the legal challenge, and a report at tcpalm.com, a news site for Florida's Treasure Coast and Palm Beach, notes U.S. Rep. Tom Rooney and U.S. Rep. Bill Posey, both Republicans of Florida, endorse the legal fight, saying the "individual mandate is an unprecedented infringement on personal liberty."

While I've long been critical of the consumer mandate, and am still now open-minded as to the possibility the mandate is unconstitutional, it is in everyone's interest this lawsuit fail - and here's why.

This challenge hinges on the tenth amendment, the last amendment in the Bill of Rights and an amendment which does not concern itself with the rights of you or I. Instead, the tenth amendment is about the division of obligations and authorities between the national government and the state governments. Were the tenth-amendment argument to succeed, it would not protect individuals from being compelled to purchase insurance, but rather relocate the authority to compel residents to purchase health insurance to the state governments. At least one state, Massachusetts, under a Republican governor enamored with corporate bureaucracy, Mitt Romney, "infringed on personal liberty" with a consumer mandate years ago as it is.

A better case for the mandate being unconstitutional would be the often-ignored and rarely-appreciated ninth amendment, on the grounds individuals have an unenumerated freedom from being compelled to purchase services, particularly services for which demand is generally inelastic and the market monopolized. This would proactively assert the rights and freedoms of men and women, instead of curtailing possibly intrusive practices in D.C. by green-lighting the same very practices by government elsewhere in our federal system.

 

 
 

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