Hope On The Horizon For The Demise Of Obamacare..

Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service and, as this paper will explain, no decision or present doctrine of the Supreme Court justifies such a claim of power.

Therefore, because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine.

This memorandum explains why the two powers cited by supporters of this bill--the power of Congress to regulate interstate commerce and the power of Congress to tax-- do not justify an individual mandate, even under the most expansive readings given these powers by the Supreme Court.

In particular, this paper addresses four topics that have not yet been given adequate consideration by Congress and most, if not all, of the commentators:

* First, most arguments, either favoring or opposing the individual mandate, do not discuss the Supreme Court's "class of activities" test, which it has applied in every relevant Commerce Clause case. This paper addresses this oversight and argues that, despite the broad congressional power to regulate interstate commerce, the individual mandate provision fails this test and is unlikely to survive the Court's review.

* Second, this paper addresses the common, but mistaken, suggestion that a universal federal mandate to obtain health insurance is no different than a state requiring its licensed automobile drivers to have liability insurance for their injuries to others.

* Third, this paper analyzes claims arising under the Taxing Clause. A preliminary review raises serious questions about the constitutionality of using the taxing power in this manner.

* And finally, this paper explains why it is highly unlikely that the Supreme Court would break new constitutional ground to save this unpopular personal mandate.


Read "The Paper" from The Heritage Foundation..