Health Care Bill’s Individual Mandate Is Unconstitutional, Conservative Group Argues

By Susan Jones | December 22, 2009 | 9:40 AM EST

U.S. Constitution

( - Conservatives are discussing a constitutional challenge to the Democrats’ health care legislation, if and when it becomes law.

Aside from constitutional questions about Sen. Ben Nelson’s deal with Democrats on behalf of Nebraskans, conservatives are eyeing the bill’s individual mandate – the requirement that every American citizen must purchase health insurance.

“Mandating that individuals must obtain health insurance, and imposing any penalty—civil or criminal—on any private citizen for not purchasing health insurance is not authorized by any provision of the U.S. Constitution,” says The Conservative Action Project, a group of prominent conservative activists. “As such, [the bill] is unconstitutional, and should not survive a court challenge on that issue.”
Supporters of the Democrats’ health care bill have incorrectly contended that the individual mandate is authorized by the Commerce Clause, the General Welfare Clause, or the Taxing and Spending Clause, the Conservative Action Project said.
But since the federal government has limited jurisdiction – having only enumerated powers – unless a specific provision of the Constitution empowers a particular law, then that law is unconstitutional. There is no authorization for the individual mandate, the group said.
The Commerce Clause, which allows the federal government to regulate interstate commerce, does not apply to the health care bill, “because there is no interstate commerce when private citizens do not purchase health insurance,” The Conservative Action Project said. The Commerce Clause covers only those matters where citizens engage in voluntary economic activity.
“Government can only regulate economic action; it cannot coerce action on the part of private citizens who do not wish to participate in commerce,” the conservative group said.
Nor is the bill’s individual mandate authorized under the General Welfare Clause., which applies only to congressional spending. “It applies to money going out from the government; it does not confer or concern any government power to take in money, such as would happen with the individual mandate. Therefore the mandate is outside the scope of the General Welfare Clause.”
And finally, the Conservative Action Project says the individual mandate is not authorized under the Taxing and Spending Clause or Income Tax. The Constitution only allows certain types of taxation from the federal government, and the health care bill does fall in those categories.
As for the argument that the health care bill’s individual mandate can be compared to laws requiring auto insurance – an argument President Obama has made – such arguments are invalid: 
“Only state governments can require people to get car insurance,” the Conservative Action Project said.

“While the federal government is limited to the powers enumerated in the Constitution, the states have a general police power. The police power enables state governments to pass laws for public safety and public health. The federal government has no general police power, and therefore could not require car insurance.”
Moreover, states require auto insurance only as a condition for those people who voluntarily choose to drive on the public roads. “If a person chooses to use public transportation, or use a bicycle instead of a car, or operate a car only on their own property, they are not required to have car insurance, and cannot be penalized for lacking insurance.”'Where in the Constitution...?"

In recent months, has asked various members of Congress where specifically the U.S. Constitution grants Congress the authority to enact an individual health insurance mandate. Many had no idea.
(See the following reports)
When Asked Where the Constitution Authorizes Congress to Order Americans To Buy Health Insurance, Pelosi Says: 'Are You Serious?'
Friday, October 23, 2009
Rep. Hoyer Says Constitution’s ‘General Welfare’ Clause Empowers Congress to Order Americans to Buy Health Insurance
Wednesday, October 21, 2009
Senate Judiciary Chairman Unable to Say Where Constitution Authorizes Congress to Order Americans to Buy Health Insurance
Thursday, October 22, 2009
Sen. Akaka Says ‘I’m Not Aware’ of Constitution Giving Congress Authority to Make Individuals Buy Health Insurance
Thursday, November 26, 2009
Sen. Landrieu Declines to Say Where Constitution Authorizes Congress to Force Americans to Buy Health Insurance, Saying She'll Let 'Constitutional Lawyers on Our Staff' Handle That
Friday, December 11, 2009
Democrats’ Health Care Plan Will ‘Shred Constitution,’ Hoekstra Says
Tuesday, November 10, 2009
Sen. Burris Cites Unwritten Constitutional 'Health' Provision to Justify Forcing Americans to Buy Health Insurance
Thursday, November 26, 2009
Sen. Mark Warner: ‘No Place In Constitution That Says Health Care’
Friday, September 04, 2009
Sen. Merkley: Authority to Force People to Buy Health Insurance is Part of Congress's 'Very First Enumerated Power'
Thursday, November 26, 2009
Sen. Hatch Questions Constitutionality of Obamacare: If Feds Can Force Us to Buy Health Insurance ‘Then There’s Literally Nothing the Federal Government Can’t Force Us to Do’
Thursday, November 26, 2009
Sen. Lincoln: Congress Can Force Americans to Buy Health Insurance Because Constitution ‘Charges Congress With the Health’ of the People
Wednesday, December 16, 2009
Sen. Ben Nelson: ‘I’m Not Going to Be Able to Answer That Question’ of Where Constitution Authorizes Congress to Force Americans to Buy Health Insurance
Wednesday, November 11, 2009
McCain Says Health Care Bill Would Face Constitutional Challenge
Friday, November 06, 2009
Sen. Reed: Forcing People to Buy Health Insurance is Constitutionally Justified Because It’s Like Making People ‘Sign Up for the Draft’
Thursday, November 26, 2009

Sen. Warner: 'No Place in Constitution Says Health Care'
Friday, September 04, 2009 EST