Anyone who wanted a sentinel issue to gauge political and popular views of democracy got that and more with the Patient Protection and Affordable Care Act (Healthcare Reform) that became law in May.

Politically, it was close to a toss-up, with the House of Representatives passing the $940 billion legislation 219-212. All 178 Republicans voted against it. The law is described as the biggest expansion of health guarantees by the federal government since Medicare and Medicaid were enacted better than four decades ago.

Popularly, it’s safe to say most everyone understands the need and wants reform to a system that seems busted beyond repair. In this case, however, where there wasn’t outright opposition, there was plenty of confusion.

A couple of days before the House vote, Bob Stallman, president of the American Farm Bureau Federation (AFBF) wrote to lawmakers and explained, that America’s agricultural producers are trapped in a broken insurance marketplace with few options and high insurance costs. “Farmers and ranchers need market-based reform that lowers costs and increases choices for private health insurance,” Stallman wrote.

What all Americans received instead is a law that promises to accomplish little at great cost, make the situation worse on a net basis, and for good measure, arguably, stands as the most blatant federal challenge to personal liberty and freedom in memory.

“This $900 billion, 2,800-page bill is not healthcare reform,” said Thomas J. Donahue, president and CEO of the U.S. Chamber of Commerce, after the legislation passed. “It fails to fix what is broken and risks breaking what already works. It will drive up healthcare costs and make coverage less affordable for businesses and families. It marks a major step down the road to a government-run healthcare system. It will further expand entitlements and explode the deficit, and raises taxes by a half a trillion dollars at the worst possible time. American jobs and growth are at risk thanks to the decision by the House today.”

A Jillion Wrong Don’t Make a Right
Ignore for the moment that there will still be about 23 million uninsured people in 2019, when Healthcare Reform is fully implemented, according to the Congressional Budget Office. For perspective, there are presumably about 45 million uninsured currently, according to the last Census figures. Of course, about 25% of those aren’t U.S. citizens.

Never mind that the new law will force about 9 million currently insured folks to find new insurance, that it will raise insurance premiums for people without employer-based insurance, or that it will increase taxes, increase the federal budget deficit and cut Medicare by hundreds of billions of dollars.

Overlook the political tactics used to hijack the decision for health care reform from the citizens.

Forget all of that and consider the constitutionality of a federal law that mandates citizens buy health insurance, or anything else for that matter, and penalizes those who don’t comply.

The Constitution still Matters
“The federal healthcare legislation signed today violates the United States Constitution and unconstitutionally infringes upon Texans’ individual liberties,” Texas Attorney General Greg Abbott said after Congress passed the law. “No public policy goal--no matter how important or well-intentioned--can be allowed to trample the protections and rights guaranteed by our Constitution.”

According to the lawsuit filed by Texas and 19 other states, the federal healthcare bill violates both Article I and the Tenth Amendment of the U.S. Constitution: “The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.”

Understand, though the particular issue is a mandate to citizens to buy health insurance or be penalized, it could be anything.

Explaining why the individual mandate is unconstitutional, Attorney General Abbott said: “Our nation’s founding fathers had the wisdom to limit the federal government’s authority by specifically enumerating the powers given to Congress. Today, the federal government is attempting an unconstitutional power-grab-and relying upon Congress’ authority to regulate Commerce to justify their unprecedented overreach. If there are to be any limitations on the federal government then ‘Commerce’ cannot be twisted to cover every possible human activity under the sun, including mere human existence. The act of doing absolutely nothing does not constitute an act of commerce, and today’s legal challenge reflects the states’ attempt to preserve the individual liberties that were intended by our founders and guaranteed by the U.S. Constitution.”

The states also charge that the Act, “’…converts what had been a voluntary federal-state partnership into a compulsory top-down federal program.’ As a result, the Act effectively removes the states’ discretion and constitutes a, ‘derogation of the core constitutional principle of federalism upon which this Nation was founded...[and] exceeds the powers of the United States and violates the Tenth Amendment to the Constitution.’”

Further, the multi-state lawsuit explains that the federal healthcare law, “represents an unprecedented encroachment on the sovereignty of the states,” by imposing new federal Medicaid enrollment standards.

In Texas, for instance, according to the Texas Health & Human Services Commission (THHSC), the law will double the number of Medicaid recipients and therefore force the Texas taxpayers to spend an additional $24.3 billion on Medicaid over a 10-year period. According to THHSC, in addition to dramatic spending increases, the new law will shift substantial administrative costs to the states and therefore requires that state employees and agencies devote considerable time and resources to implementing the Act.

Along with the 20 states, individuals and organizations also joined the suit. The National Federation of Independent Business (NFIB) is one of them.

“…The fundamental mission of our organization is to promote and protect the rights of small businesses and the self-employed to own, operate and grow their business, and this healthcare law directly undermines this core value,” said Dan Danner, NFIB president and CEO. “We didn’t enter into the decision to join this lawsuit lightly – we have been representing small business owners since 1943 and we take this responsibility extremely seriously. But the outpouring of opposition to this new law was overwhelming and our members urged us to do everything in our power to stop this unconstitutional law.”

By June 15, House Republicans offered a proposal that would have repealed the individual mandate portion of the law. It was voted down.

“The federal government shouldn’t be in the business of forcing you to buy health insurance and taxing you if you don’t. Twenty states and the nation’s leading small business organization agree that this ‘individual mandate’ is unconstitutional, and they’re fighting to overturn it,” said House Republican Leader John Boehner (R-OH) after the proposal failed.

Two days later—June 17—the Justice Department filed a motion to dismiss the aforementioned lawsuit.

“…Most astounding is the Justice Department’s latest argument that the healthcare law is constitutional because the individual mandate penalty at issue here is a tax,” explained Karen Harned, executive director of NFIB Legal Center.

“In the buildup to passing his healthcare bill, President Obama stated bluntly that the individual mandate ‘is absolutely not a tax increase.’ But in their court document filed today, the government brazenly seeks to hide behind a 200-year-old law – the so-called ‘Anti-Injunction Act’ – that prevents courts from determining the constitutionality of taxes,” Harned continued. “This is an about face from what is laid out in the law.”

While all of this plays out in the courts, Healthcare Reform is now the law of the land with a number of requirements imposed this year (see Ready or Not Insurance.

“Small business owners everywhere are rightfully concerned that the unconstitutional new mandates, countless rules and new taxes in the healthcare law will devastate their business and their ability to create jobs,” Danner said.

“They are also concerned about their personal freedoms. This law is the first time the federal government has required individuals to purchase something simply because they are alive. If Congress can regulate this type of inactivity, then there are essentially no limits to what they can mandate individuals to do.