Ken Klukowski: Health insurance isn't car insurance, Mr. President

Asked about the constitutionality of his healthcare bill’s key provision, President Obama said it’s legal because people have to buy car insurance. That statement is so dead wrong as a matter of constitutional law that it makes anyone who practices constitutional law wonder how the Harvard Law School faculty would now grade their most famous graduate.

On Nov. 9, the president was asked by ABC’s Jake Tapper about the constitutionality of the individual mandate that requires Americans to purchase insurance under threat of imprisonment or other sanctions.

Obama responded that it works, “in the same way that everybody has to get auto insurance and if you don’t, you’re subject to some penalty… there’s nothing wrong with [that] penalty.”

Oh my word. No, Mr. President, healthcare insurance is not like car insurance. There are two enormous differences, both of which make it a slam-dunk as to why car insurance can be required sometimes, but healthcare cannot.

The first is the fundamental difference between federal and state governments under the U.S. Constitution. States are governments of general jurisdiction, with authority to pass laws on every issue except those few reserved to the federal government.

That includes the police power, the authority to make laws for public health and safety. State laws requiring you to have car insurance in order to drive are a perfect example of a public-safety and public-health law under the police power.

The second difference is that Obama’s statement that you have to purchase car insurance is false. You don’t. Millions of people don’t drive, and instead use public transportation, or ride bicycles, or only drive on private land.

Traveling is a right. But using a car to travel on public roads is a privilege, not a right.

No one is required to have car insurance. You’re just required to get it before you exercise the privilege of voluntarily driving an automobile on the public roads. You have a choice in the matter.

Not so with Obama’s individual mandate. If you’re a private citizen sitting at home, his healthcare bill would require you to purchase insurance or pay a penalty. If you don’t pay his penalty, then you become a federal criminal.

As I’ve written since October, this mandate is unconstitutional. It’s not one of the three types of federal taxes permitted under Article I or the 16th Amendment of the Constitution (those three being taxes on purchases, per-capita taxes, and income).

It also cannot be justified under Congress’ power to regulate interstate commerce. The Supreme Court has only upheld laws under the Commerce Clause that involve private citizens voluntarily choosing to engage in economic activity. Once you do so, the courts can decide whether it’s fair to call it “interstate commerce” such that Congress can regulate it.

Here, there is no economic action. There is a difference between regulating action versus coercing action. Congress can regulate certain commercial actions, but it cannot regulate inaction.

Sen. Orrin Hatch, R-UT, was the first public official to write on why this mandate is unconstitutional. David Rivkin and Lee Casey then did the same for the Washington Post, all of whom wrote before I did.

Since then, the debate has taken off, with increasingly more legal scholars weighing in against the mandate’s constitutionality. Although some liberal lions like Erwin Chemerinsky are defending the mandate, there is a growing chorus among scholars that the mandate should not survive a constitutional challenge.

This sets up two problems for Obama, House Speaker Nancy Pelosi, D-CA, and Senate Majority Leader Harry Reid, D-NV. First, growing concerns that this mandate is unconstitutional makes it harder for moderate Democrats to vote for it, and will make them increasingly vulnerable in 2010 and 2012.

Second, the fact that it’s unconstitutional and that a speedy lawsuit could end up before the Supreme Court shortly before the 2012 election creates the risk that it will be struck down just in time for the American people to decide whether to give Obama four more years in power—and in reshaping the Supreme Court into one that will embrace his far-left view of the Constitution.

Requiring American citizens to purchase health insurance represents an unprecedented attempt to expand the reach of the federal government into citizens’ private lives. This unconstitutional power grab must be stopped.

Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.