Jared Polis (D-Boulder) wrong about Constitution & mandatory health coverage

February 20, 2012
Health Care Policy Center
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With Colorado Rep. Jared Polis (D) facing reelection for District 2 against either Republican Eric Weissmann or Kevin Lundberg (& those from other parties), it’s worth examining Polis’s record on health care policy.

Last year I received an automatically generated e-mail from Polis about health care. In it he defends the Constitutionality of government’s requiring you to buy a government-approved health plan [no, it’s not real medical insurance] by saying this individual mandate is a tax:

Another major concern with HR 3590 is the constitutionality of the bills regarding the mandate requiring individuals to purchase health insurance. As you may know, the Constitution grants Congress the authority under Article 1, Section 8 to “make all laws necessary and proper” to fulfill its mandate to “provide for the general welfare” of the public, a right recognized by the Supreme Court in the United States V. Doremus. In this ruling, the Supreme Court stated that “if the legislation enacted has some reasonable relation to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed motives which introduced it.”

The Court has long given Congress broad authority to define what is in the general welfare of the country, and given the impact that health care has had on our citizenry and our economy, it is well within Congress’ right to enact legislation related to this matter.

Under the new law, a tax penalty is charged against individuals or families who are required to obtain health insurance [sic] but do not do so.

Jared Polis argues that mandatory health coverage specified by ObamaCare is a tax, and hence is Constitutional. The problem with this argument is that President Obama himself has argued that the mandate is not a tax (see video below) as has Jeffrey Zients, Director of the Office of Management & Budget, part of Obama’s Executive Branch.

The Obama Administration has a history of arguing that the mandate is either a tax, or not a tax, depending on the circumstances.

Further, as legal scholar Dave Kopel argues, the mandate penalty cannot justified as either income tax, an excise tax, or a direct tax.

Polis’s defense of the mandate and interpretation of the general welfare clause also implies that the Constitution grants Congress unlimited power. As Dave Kopel writes:

For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power? I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759-60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.

However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc?

Read his whole post: Is the tax power infinite?

See also the following by Randy Barnett: