Government can’t force people to buy insurance they don’t want

It is not part of my job as Colorado Attorney General to tell our Congressional delegation how best to reform the nation’s health care system. And I don’t see it as my role to opine whether the Patient Protection and Affordability Health Care Act is good public policy. It is my job however, to defend states’ rights and the constitutional rights of Colorado citizens when the federal government oversteps its bounds.

The U.S. Constitution, at its core, is a document that limits the power of the federal government. In fact, it only allows Congress to act within the enumerated powers set forth in the document. All other powers not given to Congress are expressly left to the states and their people. One of Congress’ enumerated powers is the authority to regulate interstate commerce. So, for example, Congress can regulate the sale or purchase of health insurance to the extent these actions affect interstate commerce.

But the Patient Protection and Affordability Health Care Act steps far beyond the current understanding of Congress’ power under the Commerce Clause. For the first time in history Congress has used the commerce power to regulate people who choose not to engage in commercial activity. Specifically, the federal health care legislation penalizes citizens who choose not to purchase a product or service, in this case health insurance.

Never before has Congress compelled Americans, under the threat of economic sanction, to engage in the marketplace. Even the nonpartisan Congressional Budget Office has acknowledged the unprecedented nature of the individual health care mandate when it stated in a 1994 report: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The federal government has never before required people to buy any good or service as a condition of lawful residence in the United States.”

On the basis of careful analysis, I have come to the conclusion that an individual mandate by the federal government to purchase a product or service appears to be an unconstitutional expansion of federal power. As such, I have chosen to join with a bipartisan group of other state attorneys general to challenge the individual mandate in federal court.

As desirable as it may be for every American to have health insurance — and I believe that would be prudent — I could not stand by and acquiesce to Congress’ attempt to compel citizens who would otherwise choose to be inactive in the market —  I could not stand by and acquiesce to Congress’ attempt to compel citizens who would otherwise choose to be inactive in the market place to purchase a product or service that Congress deems beneficial.

Allowed to go unchallenged, such a precedent would open the door to Congress mandating the purchase of all sorts of goods and services it deems beneficial. There would be no end to Congress’ authority under the Commerce Clause to govern our individual economic decision making. The 10th Amendment restrictions on federal power would be rendered meaningless.

The most common question I have received from members of the public and the press is: “Why isn’t this the same as the requirement to have auto insurance?” The answer is twofold.

First, it is the state that mandates auto liability insurance, not the federal government. It is within the state’s authority to do so unless a specific state constitution prohibits it. Further and importantly, driving is a privilege. You can choose to forego driving and not have to purchase auto insurance. Under the individual mandate in the health care legislation, you are required to have health insurance simply as a condition of being a resident of the United States.

I realize our decision to join this lawsuit has not been popular with everyone in the state. Most who have contacted our office on both sides of the issue are motivated by their take on the politics of the legislation. Many see Congress’ health care legislation as a good thing, and they want everyone to have health insurance. Others are opposed to the legislation for a variety of reasons. I would simply urge Coloradans not to overlook the significant constitutional issue involved.

We did not join this lawsuit due to politics, polls or the demands of any interest group. Our focus has been on the law and constitutional limits on federal power. I assure all Coloradans my decision was based on my belief that the individual health care mandate is an unprecedented expansion of the power of the federal government and could undermine the rights of the states and their citizens for generations to come.

John Suthers, Colorado’s 37 attorney general, is a resident of Colorado Springs.


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