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The federal government has three ways it can obtain a law-abiding American’s property:

1.  It can tax you.  Taxation is the power of the government to force transfers of cash from owners to itself.  It is a broad power, expressly stated in the Constitution:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .

Sometimes the government takes your cash on the basis of your income.  Sometimes the government takes your cash because you bought something, like cigarettes or gasoline. Sometimes the government takes your cash when you trade with other nations.   And sometimes the government takes your cash because you die.  But if the government taxes you, it is always the direct recipient of the money – at least for a moment, before it spends it.

2.  It can take your property (and pay you for it). Eminent domain is the power of government to force transfers of property from owners to itself or its designees.  A little-known fact — the power of eminent domain is not in the Constitution itself.  Rather, it was presumed by the Framers to be an inherent power of government, but one that needed to be controlled.  Thus, the Fifth Amendment prohibition on uncompensated takings:

No person shall…be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.

Here, the Framers were striking back at the abuses of the British government, which occasionally took private property for use by the Crown, without compensation.  And when the Fifth Amendment says “property,” it means the tangible stuff — your real estate, your tractor, your great aunt’s buffet, you name it — just not your money.  That only makes sense, because when it comes to the “just compensation,” unless the property owner agrees otherwise, it’s always going to come in the form of cash.

One small change in practice since the days of the Founders has been the designation of some limited private parties with the right of eminent domain.  In these cases, the government usually grants heavily-regulated companies (railroads, power companies, telecoms) with a limited right to exercise eminent domain in furtherance of a public utility.  But even in these cases, the private party must demonstrate that the taking is necessary for a public purpose; it can only take tangible property (not cash); and the taking must be justly compensated with cash.

3.  It can regulate your commerce (and take your cash in the process). Since the advent of the 20th century, Congress has done remarkable things through its Article I power to “regulate Commerce . . . among the several States. . . .”  It has regulated the financial markets, ensured the safety of foods and drugs, prohibited pollution, protected endangered species, and imposed workplace rules.  In each case, it requires a person or corporation performing a certain activity to perform it in a certain manner.  For example, if a mining company chooses to employ workers in mining, it has to properly train them and give them certain equipment necessary to do their jobs safely.  The government does not require anyone to actually mine — that is up to the company — but if it chooses to mine, it has to do it right.  Similarly, if a steel mill wants to operate, it has to get an air pollution permit.  That permit might require the company operating the mill to pay certain fees to the government, but only because it wants to operate.  If instead it shuts down the mill and didn’t doesn’t emit pollution, it doesn’t have to pay the fee.

Does this sound elementary?  Maybe so.  But if President Obama’s health care plan is enacted as described, it will attempt to create a fourth way for the federal government to take your property.  Let me explain why.

Our good friends at American Missive took aim at our President’s latest easy target: his claim that his “excise tax” on those who refuse to buy health care under his plan is not a tax.  Let’s look at his explanation:

Frankly, I agree with the President.  This is not a tax.  A tax requires a property owner to pay cash to the government to pay for public services or debt.  In this case, the only time the government gets cash is when it fines the individual for failing to obtain health insurance.  That’s not a tax — fines are an act of law enforcement.  Even if one gets fined here, he still has to pay a private party for health care.  So, President Obama, you’re right — this is not a tax.

So, one has to ask — which of the other two options is it?  Let’s take the easy one first — it’s definitely not an exercise of eminent domain.  Why is that an easy answer?  Because the transaction doesn’t involve tangible property.  Rather, Obama’s health care plan would require a private citizen to pay cash to a third party for a service (health insurance).  Now, the health insurance mandate does bear one similarity to the eminent domain option.  Only the eminent domain option allows government to invest a non-governmental entity with the ability to act in the public interest — the government can’t give private parties the right to tax or regulate.  But remember why the eminent domain option exists — to allow the government (or its designee) to obtain specific tangible property that it needs for public purposes.  That need isn’t in play here, so eminent domain is off the table.

So we’re left with Congress’ power to regulate interstate commerce.  To be sure, this power has been a carte blanche for Congress for almost 100 years now, so one might be tempted to end the analysis right here.  But even a broad-minded advocate of the Commerce Clause has to acknowledge that the health insurance mandate is entirely new territory.  Why?  Because it regulates a citizen’s existence, not her activity.

If you want to understand the outer limits of the Commerce Clause, it’s best to head to the wilderness.  Consider, for example, whether the proposed regulation would apply to a person who effectively opted out of all commercial activity, pitched his tent in the woods, caught or grew his own food, and did everything in his power to avoid the rest of humanity.  Obviously, such a person is not engaging in interstate commerce — he’s not engaging in commerce at all, in fact.  The closest he comes is when he kills his food (he might be shooting a spotted owl, after all), but that’s a debate for another day.  Regardless, our man in the wilderness is NOT consuming health care and driving up the costs for the rest of us.  But under the Obama plan, he would still be subject to a fine for failing to obtain health coverage.  Our man in the wilderness isn’t undertaking any activity, or availing himself of a privilege — he is surviving, plain and simple.  When Congress has attempted to criminalize activity that is inherently intrastate (as this man’s would be), the Supreme Court has struck down those regulations (U.S. v. Morrison; U.S. v. Lopez).

Consider three scenarios where Obama’s fine would apply.  We’ve already considered the first — the person who never seeks health care or insurance.  It’s impossible to conceive of how that individual might impact interstate commerce, but it’s also difficult to conceive of such an individual in today’s society.  So we move to the second example — the person who always pays cash for health care.  This was the model for health care payment as recently as fifty years ago.  Is it possible that such behavior — which creates no public debts, nor imposes higher costs on the insured — has such an irresistible impact on the health insurance industry that it can be subject to civil enforcement?  The third scenario goes to the individual who has health insurance, but not a plan that meets all the bells and whistles required by an Obama regime.  If a conservative Christian refuses to carry health insurance that covers abortion or contraceptive services for religious reasons, does her conscience-based alternative create consequences for interstate commerce?  She pays her premiums; she covers her co-pays; and yet her business transaction is one worthy of national regulation?

But this all ignores the more fundamental question: Can the federal government require a citizen to pay cash to a private party for services he does not wish to receive, and if he refuses, penalize him? Such an act would be unprecedented for the federal government.  It is so unprecedented that, to my knowledge, it has never been tested in the federal courts.  I would argue it’s never been tested because no prior Administration would ever argue it was possible.  It’s not taxation — the government isn’t getting the money.  It’s not eminent domain, because no tangible property is being exchanged.  And it’s not regulation of commerce, for the burdened citizen is not seeking to engage in the commercial transaction being regulated.  So what is it?

I’ll tell you what it is — it’s unconstitutional.

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