The requirement that everyone buy health insurance -- a central element to President Obama's health care plan -- is flatly unconstitutional, legal experts argue.
"At the heart of this plan is an unprecedented imposition on individual liberty," constitutional attorney David Rivkin told FOX News.
The constitution allows the federal government to regulate interstate commerce but Rivkin argues the insurance requirement is just an attempt to dictate personal behavior.
"What’s unique about here is the mandate imposed on individuals merely because they live," he said. "Not connected with any economic activity, not because they grow something, make something, compose something. Merely because they live. And this is absolutely unprecedented."
During the Prohibition era, the federal government dictated personal behavior by making the consumption of alcohol illegal. But to do so, the nation had to pass a constitutional amendment.
Health care reform depends on the individual mandate, in part because it needs the money and good health of younger people to fund the system and spread the risk.
"When you're 25 and healthy you think you're invincible. You think you're never going to get sick, never going to get into an accident," said Doug Kendall of the Constitutional Accountability Center.
And so young people don't buy insurance. But if one gets into an accident and runs up huge medical bills, taxpayers foot the bill, Kendall said.
"The fundamental point behind pushing people into the private insurance market is to make sure that uninsured individuals who can pay for health insurance don't impose costs on other tax payers," he said.
Kendall argues the interstate commerce clause justifies such action because it regulates insurance and health care. But when the Clinton administration wanted an individual mandate in the 1990s, the nonpartisan Congressional Budget Office also called such a requirement "unprecedented."
"The government has never required people to buy any good or service, as condition of lawful residence in the United States," congressional budget officers said.
Some question why the government cannot force Americans to buy health insurance if it can regulate other behavior such as use of illicit drugs. But if the government can do that to protect taxpayers, why couldn't it force people to stop smoking or lose weight?
The Congressional Research Service looked into the mandate question and concluded only that Congress "may have" that power but called it "the most challenging question" -- meaning the centerpiece of health care reform is still open to debate.
and it's unconstitutional
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