The legal challenges to ObamaCare are sure to come, on many grounds. It is not wise for opponents of this monstrous usurpation of liberty to get their hopes up — though I find it interesting that the list of state Attorneys General lining up to challenge the mandate to purchase health insurance continues to rise.
However, Ed Morrissey over at HotAir has unearthed an interesting memo that the sacrosanct Congressional Budget Office issued in 1994, the last time government-run health care was a hot political topic:
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.
Federal mandates typically apply to people as parties to economic transactions, rather than as members of society. For example, the section of the Americans with Disabilities Act that requires restaurants to make their facilities accessible to persons with disabilities applies to people who own restaurants. The Federal Labor Standards Act prohibits employers from paying less than the federal minimum wage. This prohibition pertains to individuals who employ others. Federal environmental statutes and regulations that require firms to meet pollution control standards and use specific technologies apply to companies that engage in specific lines of business or use particular production processes. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.
Note the CBO said a mandate on conditions of citizenship, such as what ObamaCare would impose, are "extremely rare," not unprecedented. Yet other than Selective Service registration, the CBO cites no other examples. If they are so rare, one would also think them memorable, and perhaps another example or two would have come up in the evaluation. Interesting. And, of course, one difference between the Selective Service registration and the forced purchase of health insurance is that the former is cost-free.
Yes, I've anticipated the argument that American citizens are forced to pay income taxes — with the targets of the tax and the amount dictated by ever-changing statute. And I'm sure that will be a counter-argument we'll hear in court from ObamaCare defenders. But one may note that the income tax itself was not instituted by mere statute, but by a constitutional amendment. So the people, in a manner enormously more difficult than the way ObamaCare was rammed through, approvingly validated the income tax by making submission to the tax a constitutional requirement of citizenship.
Alas, that was a different time, when even the progressives understood that epochal proposals remaking America and the relationship between the citizen and the state required overwhelming public validation. Today's progressives are of a different breed.
(HT: Daniel Foster)