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Painter: Necessary, Proper and the Individual Mandate

• It is inconsistent with the fundamental concept of self-ownership that underlies the theory of natural rights in the Declaration of Independence — the idea that we own ourselves and, therefore, have the right to be left alone as long as we honor the equal right of others to be left alone.

Beyond that, the administration’s expansive view of the commerce power creates a sea of federal power limited only by islands of individual rights (and limits on using the commerce power to regulate noneconomic activity), and that is inconsistent with the letter and spirit of the Constitution:

• It imposes virtually the same limits on federal and state power and, therefore, effectively gives the federal government the same police powers as the states.

• It puts liberty at risk by relying entirely on individual rights to protect us against things such as mandated doctor visits and exercise. For example, the Supreme Court has found an unenumerated “right to liberty” only where there is no harm to others. The courts could easily decide that skipping annual physicals or living a sedentary life harms others by raising medical costs for some and insurance premiums for all.

The administration downplays the threat to liberty posed by the individual mandate by arguing:

• The federal government imposes mandates all the time. The reality: The only existing federal mandates are registration for military conscription, jury duty and census participation. These are all essential to the very existence of the federal government and therefore considered fundamental duties of citizenship.

• Mandates are no more intrusive than the regulation or prohibition of chosen activity. The reality: A dozen prohibitions of chosen activity leave you free to do an infinite number of things. A dozen mandates can potentially occupy all of your time and consume all of your financial resources.

• Congress can achieve the same thing through its taxing power, such as by imposing a tax and giving a rebate if the taxpayer purchases health insurance. The reality: That doesn’t mean Congress can use the commerce power to impose mandates, and because narrowly targeted mandates are politically easier to impose than broad-based tax increases, they are a greater threat to liberty.

Ultimately, the Obama administration’s arguments on the “necessary” test undermine its arguments on the “proper” test and render the individual mandate unconstitutional.

Jack Painter is the founder of Liberty Alliance Cincinnati and is on the board of the Ohio Liberty Council.

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