Thursday, April 29, 2010

The Health Insurance Mandate and the Constitution

One of the more controversial provisions of the recently-enacted health insurance reform bill is the mandate for all individuals to purchase health insurance. But as Randy Barnett points out in a op-ed in the Wall Street Journal today, the mandate isn't likely to pass constitutional muster:

The Patient Protection and Affordable Care Act (aka ObamaCare) includes what it calls an "individual responsibility requirement" that all persons buy health insurance from a private company. Congress justified this mandate under its power to regulate commerce among the several states: "The individual responsibility requirement provided for in this section," the law says, ". . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2)." Paragraph (2) then begins: "The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased."

In this way, the statute speciously tries to convert inactivity into the "activity" of making a "decision." By this reasoning, your "decision" not to take a job, not to sell your house, or not to buy a Chevrolet is an "activity that is commercial and economic in nature" that can be mandated by Congress.

It is true that the Supreme Court has interpreted the Commerce Clause broadly enough to reach wholly intrastate economic "activity" that substantially affects interstate commerce. But the Court has never upheld a requirement that
individuals who are doing nothing must engage in economic activity by entering
into a contractual relationship with a private company. Such a claim of power is
literally unprecedented.

Professor Barnett also co-authored a more detail analysis of the individual mandate found here. He also wrote an excellent analysis on the constitutionality of the legislation here.

ObamaCare was passed with little regard for the constitutionality of its provisions. Although there is a popular move to repeal the bill the more likely dismantling of the law will come through the courts. With Justice Stevens retiring, the President's Supreme Court nominee takes on a new importance.

NARAL Chief: "They Are So Young!"

According to LifeSiteNews, NARAL president Nancy Keenan has grudgingly admitted what many in the pro-life movement have seen: young women are flocking to the defense of the unborn (Hat tip: James Taranto):

The pro-life movement in America is growing in leaps and bounds, attracting young, zealous women to defend the unborn in droves - a fact that even the president of NARAL has now admitted.

NARAL's Nancy Keenan told Newsweek last week that she considers herself a member of the "postmenopausal militia" – a phrase that captures the situation of pro-abortion leaders who are aging across the board, including the leadership of Planned Parenthood, and the National Organization for Women. Newsweek's Sarah Kliff notes that "these leaders will retire in a decade or so."

Keenan also remarked on the enormity of this year's March for Life in Washington, D.C., and, according to Newsweek, is troubled that such passion has faded among the youth on her side of the movement.

"I just thought, my gosh, they are so young," Keenan said about stumbling on this year’s March for Life in Washington. "There are so many of them, and they are so young."

While March for Life estimates it drew 400,000 pro-lifers to Washington for this year's March, Planned Parenthood's "Stop Stupak" rally in December only
drew about 1,300 attendees.

In addition, Newsweek revealed that NARAL's own research on American youth shows more reason for Keenan to worry: a survey conducted by the group found that, while 51 percent of pro-life voters under 30 considered abortion a "very important" voting issue, only 26 percent of abortion supporters in the same demographic felt similarly.

James Taranto attributes this "enthusiasm gap" among abortion activists to what he terms "the Roe Effect". In simple terms, the theory is that pro-abortion women are not having babies and therefore are not raising children to carry on their pro-abortion beliefs. While it may still take a while to play out politically, perhaps we are finally starting to see signs that America is becoming a more pro-life nation at last.