Yesterday, The Heritage Foundation filed a friend-of-the-court brief with the 11th Circuit U.S. Court of Appeals, reiterating Heritage’s opposition to the individual mandate that is a key piece of the Obamacare statute. This is the first time we have ever filed such a brief—as far anyone around here can remember. But we had no other choice. In its merits brief before the appeals court, the U.S. government quoted a 21-year-old statement by a Heritage Foundation policy expert supporting an individual mandate for health insurance, when Heritage’s view today is to the contrary.

It all goes back to late January, when federal judge Roger Vinson ruled in a 26-state challenge to Obamacare that the law’s individual mandate forcing Americans to purchase government-approved health insurance is unconstitutional.

Over 21 years ago, Heritage analysts initially (and mistakenly) considered the idea of a limited individual mandate coupled with appropriate tax incentives as a favorable answer to the “free rider” problem—i.e., citizens who do not buy personal health insurance knowing that, in the event of illness or injury, the government will ensure they get the necessary medical care.  Of course, even that limited and qualified position did not demonstrate support for an unqualified individual mandate as structured in the Obamacare statute.

The government’s reliance on this dated policy lecture is like arguing that a medical researcher who expressed qualified support for one therapy 21 years ago should naturally favor a broader application of that therapy today, even if his own and other research has disproved the assumptions that supported the original approach.

The federal government used our aged position and ignored later Heritage research that showed: 1) health insurance individual mandates will fail and are bad public policy; and 2) the federal government’s attempt to force private citizens to purchase health insurance in the Obamacare statute is unconstitutional.

We have no alternative but to file a brief in response in order to make clear the Heritage view that the individual mandate is both bad policy and unconstitutional.

As we note in our brief: “Heritage policy experts have been involved in the debate over mandates for many years, but its own research contributed to the growing consensus among market-based economists and health policy experts that such a mandate is not necessary to achieve a high level of coverage and will never produce the mythical ‘universal’ coverage that its advocates desire.”

For a research organization such as ours to be intellectually honest, we cannot rigidly accept an idea presented decades ago, and ignore empirical evidence presented since. That is why we changed our position on individual mandates long before President Obama ever spoke of one.

As we note in our brief: “If citations to policy papers were subject to the same rules as legal citations, then the Heritage position quoted by the Department of Justice would have a red flag indicating it had been reversed.”

Obamacare’s mandate will increase costs, not achieve universal coverage, and not solve the “free rider” problem. But more importantly, it violates the U.S. Constitution, because the Commerce Clause does not transform a national government of limited and enumerated powers into one of limitless authority.

Obamacare is an abomination that must be repealed. While the courts judge its constitutionality, we will continue to fight toward that end legislatively. We will continue to advocate for smarter solutions as outlined in our plan to fix America’s debt, Saving the America Dream, which we released this week. America deserves real health reform that offers personal freedom, state innovation, lower costs, higher quality care and greater participation. Obamacare does not accomplish this—and our plan does, without mandates.

Quick Hits: