By John M. Rogitz

With all the minor adjustments Nancy Pelosi is making to the potential costs of health care in order to get more Democrats on board, everyone seems to be forgetting one thing: What happens when the individual mandate is declared unconstitutional and all that expected revenue is lost?  The individual mandate has been of particular focus this week in relation to the potential expansion of IRS powers.

In case you missed the IRS story, not paying the required fine for lack of health insurance would be considered tax evasion punishable as a Federal crime.  Moreover, the IRS would be able to garnish your tax returns before sending your hard earned money back to you.  Right…you couldn’t afford to buy health insurance to begin with, so now O’s going to fine you.  Now who’s really the party of the little man?

Anyway, the Democrats are counting on the revenue generated by the fine people would pay if they did not purchase heath insurance.  However, there are some genuine concerns that the mandate will be struck down.  Let’s examine why exactly the individual mandate could be unconstitutional.

The Dems say the fine is simply a “tax,” falling under Congress’ plenary authority to lay and collect taxes under Article I, Section 8, Clause 1 of the U.S. Constitution.  Alternatively, they say it is a “direct tax” applicable to all citizens as allowed under Article I, Section 9, Clause 4.

Both the “lay and collect taxes” clause and the “direct tax clause” are modified by other phrases in those respective clauses.  The lay and collect taxes clause is followed by “Shall be uniform throughout the United States,” while the direct tax clause is followed by “In Proportion to the Census or Enumeration herein.”

Congress obviously does not know the purpose of either of those two additional phrases.  Those two modifiers mean that taxes should be applied uniformly when laying and collecting taxes and in proportion to the populations of the states when in the form of a direct tax.  The proportional requirement of a direct tax basically means that if California residents make up roughly 9% of the population, they owe 9% of any direct taxes levied by Congress.  There is nothing uniform or proportional about only taxing one segment of the population that has not purchased health insurance.

Another argument by the left is that the fine provided by the individual mandate is constitutional in light of Congress’ power to regulate interstate commerce.  We have to get a little more philosophical when it comes to the meaning of our Constitution on this one.

The individual mandate essentially “taxes” inaction rather than action.  It does not tax earning money, buying goods, owning property or any other commercial activity.  This type of law is completely unprecedented.  It would literally be a crime to do nothing and not afford the penalty for doing nothing.  How’s that for liberty?!  One can only imagine what the Framers and the original Tea Partiers would say.

Besides those constitutional objections to the individual mandate, I’ve got two more the left can’t even argue.  First, how about the “right to privacy” created by the Supreme Court under the Fourteenth Amendment?  That legal theory took abortion out of democracy’s hands.  It also gave individuals the right to regulate their reproductive health with contraceptives despite a Connecticut law banning them.  Those rulings were inherently about a person’s right to make decisions concerning their own health.  Purchasing health care is too, even if your choice is no care at all.

Next comes the freedom to contract.  Our founding document prohibits states from restricting the right to contract.  Not only that, but the freedom to contract itself has been one of the cornerstones of our legal tradition – a legal tradition dating back to common-law England and separating us from virtually every other legal system in the world.  As the Heritage Foundation observed, “No where in the constitution is Congress granted the authority to mandate that individuals enter into a contract with a private party….The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

There you go, dear readers.  When the individual mandate gets struck down on any of these constitutional grounds and the proverbial gravy-train runs out, we’ll be even more broke than current estimates project.  Don’t you just love Nancy Pelosi?

COPYRIGHT 2010 JOHN M. ROGITZ