Obamacare: Why the individual mandate will be overturned

Obamacare: Why the individual mandate will be overturned

Washington : DC : USA | Feb 16, 2012 at 1:56 PM PST
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Gingrich Supports 'Variation' on Obamacare-Type Health Insurance Mandate

When the Patient Protection and Affordable Care Act (PPACA) was passed, it was clear that there were some valid consitutional questions. The one that seems to be garnering the most scrutiny is the individual mandate, a provision which required all Americans to buy insurance. Even with the mandate in place, Congressional Budget Office has projected that it will never reduce healthcare costs, nor will it ever reduce the deficit, contrary to the claims of the Obama administration.

Without the individual mandate, people will be allowed to buy insurance only when they're ill, making PPACA basically dead in the water, since it will never be able to take in more in premiums than it pays out in benefits, making it economically nonviable.

The Obama administration has maintained that the mandate is constitutional under Article 1, section 8, commonly known as the Commerce Clause. It states that Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." Ironically, it may be the same clause which will ultimately result in it's being declared unconstitutional. The hitch appears to be that by forcing an individual to purchase something against their wishes, the government is forcing them to engage in commerce, not regulating it.

There are a few other problems as well; recently the Roman Catholic Church has come out against the requirement that religiously affiliated hospitals, colleges, and charities offer insurance coverage for contraception, sterilization, and the "morning-after" pill — all of which are vehemently opposed by the Catholic Church. It is being perceived by the Church as a violation of "the fundamental right to religious liberty."

The interesting thing, to me, is that, to date, I've seen nothing to indicate the mandate may also be unconstitutional under the First Amendment; why would the exclusion of a church from the individual mandate not constitute the "establishment of religion"? Isn't excluding a church from adherence to a federal law affording them a right which is being denied to others?

Under the Commerce Clause, it appears that the states, rather than the federal government should, in theory, have the authority to force an individual mandate, but this fails as well, because at the state level, citizens are entitled to equal protection under the law, per the 14th Amendment, which reads in Section 1:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

By offering Catholics exemptions not provided for all citizens, the state would be denying non-Catholics their right to equal protection.

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Will the Individual Mandate stand muster?
Hardy Wright is based in Colorado Springs, Colorado, United States of America, and is an Anchor on Allvoices.
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