My Jurist Article on Why the Individual Health Care Mandate is Unconstitutional

The Jurist has posted my article on “Why the Individual Health Care Mandate is Unconstitutional.” The format allowed me to lay out the case against all three of the federal government’s rationales for the law more fully than in any previous popular press publication. Here’s an excerpt:

Twenty-eight states and several private groups have now filed lawsuits challenging the constitutionality of the of the Obama health care plan. One of the cases was filed by twenty-six state governments and the National Federation of Independent Business in a federal court in Florida. Another was initiated by the Commonwealth of Virginia in a federal court in that state. Numerous other suits have been filed by a variety of private groups.

When the first of these suits began a year ago, many denounced them as frivolous political grandstanding. But it is increasingly clear that the plaintiffs have a real chance of winning. More importantly, they deserve to win because the mandate really is unconstitutional. If upheld, it would give Congress a dangerous power that greatly exceeds the bounds of the Constitution.

The cases focus primarily on challenges to the new law’s “individual mandate,” which requires most American citizens to purchase a government-approved health insurance plan by 2014 or pay a fine….

The federal government claims that Congress has the power to impose the mandate under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause of the Constitution. All three arguments have a common defect: if accepted by the courts, they would give Congress the power to enact virtually any mandate of any kind. Such a ruling would be unprecedented and would make a hash of the Constitution’s carefully defined limits on federal power.