The Mandate and Mug Clause

Where is the constitutional authority for ObamaCare?


What does it say about your cause that nearly every policy idea you cook up is based in some form or another on coercing the American people?

When House Judiciary Committee Chairman John Conyers (D-Mich.), was asked recently to identify where the Constitution grants Congress the authority to force all Americans to buy health insurance, he replied, "Under several clauses, the good and welfare clause and a couple others."

For those of you who aren't familiar with the "good and welfare" clause, it states, "The Congress shall have Power to make Citizens of each State compelled to partake of the Privileges of Health Care Insurance, & those who refuse will be fined, charged with a misdemeanor Crime or lashed (or receive Medicaid)."

Now, I'm not a lawyer, but I was somewhat surprised to discover that the Constitution features a "good and welfare" clause—though obviously, Washington has done a laudable job fulfilling the latter part of this imaginary passage.

(We'd be better off mandating that elected officials own copies of the Constitution.)

It has, actually, been widely speculated that Conyers, a lawyer, was referring to the General Welfare Clause, which gives Congress the authority to tax and spend to promote the general welfare.

The other "clauses" he mentions are likely the long-abused Commerce Clause, which gives Congress the power to "regulate Commerce … among the several States."

Attorneys general from 14 states and other state legislatures disagree with Conyers and already have mounted legal challenges to the constitutionality of individual mandates. Few people believe they will be successful in their admirable cause.

As a layman, I have little business wading into the intricacies of constitutional law—though, in my limited understanding of this nation's founding tenets, forcing patriots to buy something in the private market seems to undermine the entire point of the project. Judging from the celebratory mood of the Democrats, who shrug off questions of constitutionality and individual rights, my reading of history is obviously way off the mark.

Surely it is inarguable that the debate over a national mandate epitomizes the central ideological divide in the country today.

In broad terms, there is one side that believes liberty can be subverted for the collective good because government often makes more efficient and more moral choices.

Then there is the other side, which believes that people who believe such twaddle are seditious pinkos.

And judging from nearly every poll, the majority of Americans disapprove of President Barack Obama and his defining legislation. Whether they understand the mugging of freedoms in legal terms or in intellectual terms or only in intuitive ones doesn't matter.

Richard M. Esenberg, professor of law at Marquette University, explained the consequences of Obamacare like this: "If Congress can require you to buy health insurance because of the ways in which your uncovered existence (affects) interstate commerce or because it can tax you in an effort to force you to do (any) old thing it wants you to, it is hard to see what—save some other constitutional restriction—it cannot require you to do—or prohibit you from doing."

Come to think of it, I have a great idea: For the common good, everyone should be mandated to purchase a newspaper each day. (Thomas Jefferson understood that democracy suffers without a newspaper.) But you won't be able to purchase just any newspaper—only the local one—as we will eliminate the national market.

Hey, why not?

David Harsanyi is a columnist at The Denver Post and the author of Nanny State. Visit his Web site at www.DavidHarsanyi.com.