TAILIEUCHUNG - Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional

As well as our work with firms we are also working to improve consumers’ understanding of PPI to strengthen their role in this market and help them shop around when buying it. Earlier this year we ran a campaign to encourage consumers to access and use insurance information, including information on PPI, on our Moneymadeclear website22 . We continue to receive around 1,000 visits to our PPI web pages each month. We are extending our suite of online comparative tables to include PPI to help customers compare products and shop around. We expect to publish these tables in March 2008. 23 We welcomed the consumer-facing PPI guide the industry. | Ỵ 1 A r Executive Summary 1 Legal Memorandum No. 49 w Published by The Heritage Foundation December 9 2009 Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional Randy Barnett Nathaniel Stewart and Todd Gaziano As the Congressional Budget Office explained 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 any good or service as a condition of lawful residence in the United States. Yet all of the House and Senate health-care bills being debated require Americans to either obtain or purchase expensive health insurance estimated to cost up to 15 000 per year for a typical family or pay substantial tax penalties for not doing so. The purpose of this compulsory contract coupled with the arbitrary price ratios and controls is to require some people to buy artificially high-priced policies as a way of subsidizing coverage for others and an industry saddled with the costs of other government regulations. Rather than appropriate funds for higher federal health-care spending the sponsors of the current bills are attempting through the personal mandate to keep the forced wealth transfers entirely off budget. This takes congressional power and control to a strikingly new level. An individual mandate to enter into a contract with or buy a particular product from a private party is literally unprecedented not just in scope but in kind and unconstitutional either as a matter of first principles or under any reasonable reading of judicial precedents. The Commerce Clause. Advocates of the individual mandate have claimed that the Supreme Court s Commerce Clause jurisprudence leaves no LEADERSHIP FOR AMERICA doubt that the insurance requirement is a constitutional exercise of that power. They are wrong. Although the Supreme Court has upheld some far-reaching regulations of economic activity most notably in Wickard v. Filburn and Gonzales v. .

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