June 20, 2010
by: Kenneth Cuccinelli

Government WasteWatch, Spring 2010

The mandate is unconstitutional because the federal government is claiming that the source of power for imposing it is the Constitution’s commerce clause, which gives the federal government the power to “regulate commerce among the several states….” We argue that if someone isn’t buying insurance, he is not, by definition, participating in commerce. How can the government use the commerce clause to regulate non-commerce, i.e., regulating inactivity?

Additionally, Virginia recently enacted the Virginia Health Care Freedom Act (VHCFA), which provides that “no resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage ....” The act was passed by large bipartisan majorities in both houses of the General Assembly (90 to 3 in the House and 25 to 15 in the Senate), and had the support of Governor McDonnell, as well.

When President Obama signed the federal healthcare bill into law, the federal law came into direct conflict with the VHCFA. Because the attorney general of Virginia has a duty to defend validly enacted Virginia laws from any challenge, my office filed suit in federal court seeking a declaration that the VHCFA is constitutional and that Congress exceeded its constitutional authority by imposing the individual mandate.

Never before has Congress sought to use its powers under the commerce clause to force a private citizen to buy goods or services from another private person or entity. If Congress can do that in the name of ensuring that everyone has health insurance, what is to stop it from ordering citizens to buy a particular brand of car to ensure that everyone has a car to drive? The possibilities, and hence the power claimed, are virtually limitless.

To the second question, why states can mandate the purchase of auto insurance, but the federal government cannot mandate the purchase of health insurance: the federal government is subject to the constraints of the U.S. Constitution. The framers laid out specific and limited powers for the federal government and reserved the rest “to the States respectively, or to the people.” In other words, the states have powers the federal government does not. For example, the states do have the authority to impose a health insurance mandate that the federal government lacks.

Additionally, buying auto insurance is voluntary, because consumers are only required to purchase it if they choose to drive on public roads. But buying health insurance under the new federal law is not voluntary, as Americans are required to buy it just by virtue of the fact that they are breathing. The federal government has never before in history exercised its regulatory power to require someone to buy a product or service as a condition of residence in the United States.

Although no one knows exactly how the lawsuit will play out, the issues it raises are of the highest importance to the future of our commonwealth and our country. Ultimately, this is an argument over how much authority the federal government has in our lives and over the states, and if it will be able to twist the wording of the Constitution so far as to take even more power from the people for itself. Whatever power the government takes, the people lose. And history shows we will likely never get it back.

A number of 20th century political leaders have warned us that a government that is powerful enough to give us everything we want is also powerful enough to take everything we have. Providing health care for all citizens is a laudable and worthy goal, but conceding our very freedom, and the freedom of future generations, to achieve that goal is a dangerous and inequitable exchange.

Mr. Cuccinelli is the current Attorney General for the state of Virginia.