ULTRA VIRES

(The following is taken substantially from an e-mail recently sent to a friend about the health-insurance bill emerging from the US Senate Finance Committee.)

ULTRA VIRES.

That is a Latin legal phrase referring to unauthorized conduct, usually in the context of a charity not acting in a charitable manner. I use it here to raise the issue of whether or not the Senate Finance Committee has gone "off the rails" in its zeal to pass a bill that allegedly provides "universal" health insurance coverage by mandating, under penalty of law, that all persons initiate and carry private health insurance at their own expense.

Over the years, we Americans have become conditioned to the US Congress pretty much doing whatever it wishes in regard to passing laws. So many of us, this writer included, have occasionally thought that merely stamping one's foot or snapping one's fingers is all that is needed to justify federal legislation to remedy some perceived problem.

However, the Founders were quite concerned (with much energy focused from the former Colonies) that the central government to be created by the US Constitution be restrained and limited in its powers to act. It was not until the later 1930's that the US Supreme Court began to allow the US Congress wide latitude in asserting its authority under the enumerated power to regulate interstate commerce (the so-called "Commerce Clause"). It was not until 1913 that the Congress could levy nonapportioned (income) taxes by virtue of the ratification of Amendment XVI.

Thus, the rumors recently circulating about the Senate Finance health-insurance bill are troubling to me. Supposedly, it will REQUIRE each of us to maintain private insurance, and most people will just go along with that because they think it sounds like a good idea. Last I heard, however, the health-insurance mandate will be enforced by the IRS, with the same penalties attached thereto as for tax evasion, INCLUDING imprisonment! Taxpayers will have to declare, under penalty of law, their health-insurance status when they file Form 1040. I can hear it now:

"Well, golly, Festus, at least evr'body will HAVE health insurance!!"

Universal coverage. Yee-hah. It's what everyone wants, right? Who would object to that? So Congress will pass the law that President Obama will sign, and--SHAZZAM!--it happens like magic! Like the law criminalizing the consumption of alcohol by college students. Not a very effective law, I daresay. Part of my concern is with the many who cannot afford private health insurance yet won't qualify for a subsidy and will thus be in violation of that penal mandate if it passes. They go to jail if they don't have health insurance or they go to jail if they lie about it. Catch-22. The well-to-do and those with good jobs need not worry.

I fail to understand how that provision will pass constitutional muster. I find no such authorization in the Constitution for the Congress to levy such a private-benefit "tax." I also fail to understand why this issue has not been raised by the cheerleading pseudo-journalists out there. Many would dismiss this as a typical lawyer esoteric rant, but many of those pseudo-journalists allegedly have law degrees. Another part of their problem is that they also have big fat health insurance programs furnished by their employers, so they don't need to share the worry with the rest of the world.

I think it is quite a stretch to say the health-insurance penal mandate is authorized under the (interstate) Commerce Clause. If that be the case, as insurance has been traditionally regulated by the states as a NON-federal matter, does that now mean the states have been thus pre-empted from insurance oversight? If so, we should lobby for application of the federal antitrust laws to insurance companies. Their recent unified declared threat to spike insurance premiums if the Senate bill passed is ample evidence to me of illicit collusion. The states have utterly failed to prevent that collusion because most health-insurance companies are so big and strong they can "steamroll" state regulatory agencies.

This is all just amazing to me. That this criminal penalty has apparently been reported out of the Finance Committee, and NO ONE bothers to ask what is its constitutional authority just overwhelms me. Not one single pseudo-journalist nor Senator bothered to ask within my hearing. It really upsets me that this country is full of knuckle-dragging, mouth-breathing Bobbing Heads just going along with any nonsense that comes down the congressional pipeline, if it seems like a "good idea."