WHY THE HEALTH REFORM BILL VIOLATES THE CONSTITUTION

The recent Health Care bill, or Patient Protection and Affordable Care Act (PPACA), is unconstitutional with respect to at least one of its provisions -- that every person shall buy health insurance or face a fine. It violates the Fifth Amendment guarantee of protection of private property.

Proponents argue that the bill is constitutional under one of two theories -- Powers under the Commerce Clause, or Powers of Taxation.

The first claim -- Commerce Clause powers -- is that once the Constitution gives Congress a power, it can "make all laws" it deems necessary and proper to execute them. (Article 1 Sec. 8 para. 18). The main power Congress claims in this instance comes from the authority to "regulate commerce ... among the several states." (Articl 1 Sec. 8 para. 3). Since Health Care is commerce among the several states, it is said, Congress has the authority to regulate it and pass any law it deems necessary.

Until 1947, the Supreme Court shot down most of Congress' attempts to enact social programs under the Commerce Clause, but after Pres. Roosevelt threatened to dilute the Supreme Court by adding more justices to the traditional nine (nine justices is not guaranteed under the Constitution), the Court reversed itself and began upholding the New Deal legislation, justifying it under the Commerce Clause. (This is where the expression "A switch in time saved nine" came from.)

Since then, Congress has been free to pass virtually any type of legislation, social, regulatory or otherwise as long as it could claim some relationship to interstate commerce. Since virtually everything impacts interstate commerce in some way, that gives Congress a lot of power.

But that power is not without limits. The Supreme Court has struck down laws that infringe on individual rights guaranteed by the Constitution. For instance, the Child Online Protection Act, which tried to regulate "sex" on the internet was passed pursuant to the Commerce Clause, but was ruled unconstitutional because it infringed on the First Amendment right to free speech.

So where an otherwise legitimate bill conflicts with a guaranteed individual right, you can bet the Supreme Court is going to overturn it. And the individual right guaranteed in this case is found in Fifth Amendment protections of private property. It's called the Takings Clause, and it prohibits the government from depriving citizens of -- or taking -- private property without "just compensation." That means if the Dept. of Transportation needs your house to build a highway, they can take it only if they pay you for it.

The PPACA doesn't take your land, of course, but it does deprive you of your money. It forces you to hand over money to either an insurance company or to the government as a penalty. That's a "taking." It has deprived you of property -- money -- that you had yesterday but don't have today. And the government can only do that if it reimburses you the amount that was taken.

Now it could be argued, and I expect it will, that "just compensation" is provided in that you receive insurance of equal value. That argument fails. First, compensation has always been interpreted to mean dollars. The government can't come take your house and pay you with wheat futures. It has to pay you money, meaning the government has just bought every insurance policy in America. So as it violates your right to private property, the PPACA is unconstitutional.

There will be some who will not buy the insurance and will simply pay the penalty to the government, meaning they get nothing in exchange -- no compensation at all. And that brings us to the second argument, that this is not a "taking" of private property, but is in fact a tax.

Congress surely has power to tax. And though not written as a tax, the bill could be looked at in reverse like this: There is no requirement you buy insurance. Every American is taxed $695, but that tax is waived if you buy health insurance. We have seen tax incentives before. They are nothing new. They are legal. For instance if you buy a new house before April 30, the government will waive $8,000 of your income tax.

But, if it is a tax, it violates the Constitution because of the kind of tax it is -- a "direct tax." Imposing a tax on the head of every citizen -- a head tax -- is called a direct tax. The citizen pays it directly. Income taxes and sales taxes are also direct taxes because the taxed individual knows it's a tax and actually pays the tax. Other types of taxes, like on gas or cigarettes, or Value Added Taxes, are called "indirect" taxes because the manufacture or retailer pays it and then adds the cost of the tax onto the price of item. The tax is ultimately paid for by the consumer in the increased price of the product, but not directly as a tax.

The distinction between direct and indirect taxes seems slight, but it means everything under the Constitution. The founders placed a strict limit on Congress' ability to levy direct taxes. Direct taxes, like representatives in the House, "shall be apportioned among the several states ... according to their respective numbers." (Art. 1 Sec. 2 para. 3.) Simply put, if Congress wants to levy a direct tax on the head of every American, it can do so only if every state pays the same pro rata share. That means that Utah's population of 2.5 million should pay exactly half of the amount paid by the 5 million citizens of Minnesota.

If the tax were actually $695 per every head in America, the tax would be apportioned correctly. But the tax is not simply $695 per head. For instance, there are exemptions based on religion. If you claim a religious exemption, you do not have to buy insurance or pay the tax. Then there is a cap on families at $2,085, whether you have 2 kids or 10. So states like Ohio, where a large population of Amish choose not to participate for religious reasons, or states like Utah which have larger families, will ultimately pay less per citizen than other states. Not apportioned. Not Constitutional.

This wouldn't be the first tax the Supreme Court invalidated because it was not apportioned. In 1895, the Court ruled that Income Taxes (you read that correctly) were unconstitutional because they were a direct tax not apportioned where some states made more income than others. The law was struck down. The reason we have an income tax today is because Congress later passed the Sixteenth Amendment specifically allowing an income tax without apportionment.

There is no amendment, however, that allows for a health care tax without apportionment. As a tax, this bill will fail as well.

The Supreme Court has shown a divisive split along idealogical lines in the years of late, with most decisions decided by conservative swing vote Just. Kennedy, so the Court is already stacked against this bill. But this legislation is so imposing and so drastically breaks with precedent as to anything ever done by Congress before, that I think it will ultimately be overturned by a greater than simple majority. That's how I'm calling it.

PM