This first article is one put out by the Heritage Foundation on December 9.
Why the Personal Mandate to Buy Health Insurance Is
Unprecedented and Unconstitutional
by Randy Barnett, Nathaniel Stewart and Todd F. Gaziano
Legal Memorandum #49
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government. FULL MEMORANDUM
And this article written by Larry Becraft.
Another Constitutional Problem for Nat. Health Care:
One of the reasons for the adoption of “National Health Care” legislation is that allegedly caused by the uninsured, the size of which I estimate is, for purposes of this legal argument, about 10% of the American population. This also means that the rest of our population, the other 90%, pose no problem in this respect. But to solve this problem caused by the 10%, Congress proposes a law to affect 100% of the people who could fall within the classification of being “lawful subjects of federal legislation” (please don’t think that my position is that everybody falls into this category).
Via the 14th Amendment, the States are prohibited from denying equal protection in their legislative enactments. Similarly, there is an “equal protection component” embodied within the Due Process Clause of the 5th Amendment. See Bolling v Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693 (1954); and Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224, 115 S. Ct. 2097 (1995). Consequently, equal protection principles apply to both the State and federal governments.
Here is an example of how the principles of equal protection operate. In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1973), at issue was an Air Force quartering allowance available to male officers, but not female. Finding no justifiable reasons for making this distinction between men and women, the Court found this quartering allowance violative of equal protection. See also Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225 (1975)(gender based SSN benefits law was void as violative of equal protection); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 105 S. Ct. 1676 (1985)(state statute taxing out-of-state insurance companies at a higher rate than domestic insurance companies held not to have legitimate state purpose, thereby violating equal protection); and Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala. 1978)(exclusion of municipalities from tort damages (“muni-immunity”) violated equal protection). For many other categorized cases, go here:
Principles of equal protection deal with legislative reasons for creating categories where a law applies to one class, but not another. A commercial fishing law that applied to one group of fishermen but not another was found violative of equal protection in Isakson v. Rickey, 550 P.2d 359 (Alaska 1976). In French v. Amalgamated Local Union 376, 203 Conn. 624, 526 A.2d 861 (1987), a ban on residential picketing except for unions was held to violate equal protection. In State v. Blackburn, 104 So.2d 19 (Fla. 1958), a law that applied only to advertising signs at gas stations but not others was held violated violate equal protection. These cases are examples of “underinclusive” classifications for equal protection analysis.
If a legislative body attempts to address via legislation a particular problem, it must focus on the class creating that problem. If in doing so, the legislative body encompasses more people than necessary to address that problem, an “overinclusive” classification is created that violates equal protection. See Brown v. Merlo (1973) 8 Cal.3d 855, 506 P.2d 212, 227 (statute was overinclusive because it “imposes a burden upon a wider range of individuals than are included in the class of those tainted with the mischief at which the law aims.”). “An overinclusive classification burdens a wider than necessary range of individuals, extending beyond those persons possessing the trait contributing to the mischief or evil the legislature seeks to eradicate... An underinclusive classification exists when all persons in the class are indeed perpetrators of the mischief or evil the state wishes to eliminate, but others who possess the same undesirable trait remain outside the class.”
In reference to the phony “National Health Care” bill, the problem is caused by that part of our population that is uninsured, but not the rest of us. This law will be overinclusive in that the problem Congress seeks to address involves the uninsured, not insured, but this law will allegedly apply to all “lawful subjects of federal legislation”, including the insured. To include everybody else beyond the uninsured violates principles of equal protection by creating an overbroad classification.
Lowell (Larry) Becraft, Jr., is a constitutional attorney based in Huntsville, Alabama, who specializes in criminal defense cases, primarily involving the federal income tax. His legal web site is: http://home.hiwaay.net/~becraft/ E-Mail: firstname.lastname@example.org