Can Congress force me to buy health insurance?

posted at 10:00 am on August 22, 2009 by Ed Morrissey

One of the more troubling components of the ObamaCare bill wending its way through the House is the inclusion of individual mandates to carry health insurance.  What gives Congress the power to dictate that choice to American citizens?  A single document enumerates Congressional power, and former Department of Justice attorneys David Rivkin and Lee Casey have some trouble finding that power in it.  They argue, with appropriate citations of precedent, that HR3200 and any other bill that attempts to impose mandates will violate the Constitution:

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

Most states now require drivers to have auto insurance before issuing drivers licenses, car registrations, or both.  However, that doesn’t apply here for three reasons.  First, that power rests with the individual states, as they are the licensing authorities and not the federal government.  Second, driving is not a right but a privilege, which gives access to state-owned roads in exchange for a demonstration of competence and appropriate safety and insurance preparation, so the state can and does set conditions on that privilege (too many, but that’s an argument for another day).  Third, because the insurance is conditioned on that privilege, it only affects a portion of the populace.  The states could not demand universal auto insurance on every man, woman, and child in their state.

But how about using the tax code to enforce the mandate?  Congress has the power to tax, as we know all too well, and they can create some severe penalties for failure to comply.  In fact, HR3200 does just that now.  However, as Rivkin and Casey explain, any tax that seeks to impose policy that goes beyond the limits of the Commerce Clause is also unconstitutional:

Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a “tax” to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court’s interpretation of the commerce power’s breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

In other words, individual mandates are unconstitutional, regardless of whether they’re explicit or buried in tax policy.

If that’s true, what happens to universal coverage?  It fails, because not everyone wants to buy health insurance now, and that’s likely to be more rather than less true after ObamaCare passes.  As we saw in Maine, when the government offers a public plan and forces community pricing and unrestricted access on private insurers, the people most likely to enroll will be the infirm, whose costs will unbalance the risk pools and drive up premiums across the board.  That will make insurance even more expensive, which will discourage rather than encourage enrollments, and do nothing at all to lower public costs of healthcare – the entire stated reason for ObamaCare, other than universal coverage.

The only way to get mandatory universal coverage is conversion to a single-payer system, which Congress also doesn’t have the power to do without amending the Constitution.  Otherwise, free will in a free system dictates that people will make choices with which many disagree, and that includes the choice not to buy health insurance.


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Constitution? Constitution???????

You elected me your ruler, therefore I make the rules

- B. H. Obama

Right-brained on August 22, 2009 at 10:04 AM

Welcome to Obamanizm!

Cybergeezer on August 22, 2009 at 10:06 AM

Those cracker founding fathers, what we’re they thinking. They were so far ahead of us in opposing the Won. What an angry mob they were.

ted c on August 22, 2009 at 10:07 AM

I am sure they can twist it such that if the individual doesn’t buy health insurance, it endangers other citizens — maybe they’ll call it “second-hand illness” to give it a nice ring. I put nothing past liberals who will twist every rule and law to push through their agenda.

LastRick on August 22, 2009 at 10:08 AM

Thanks for this post Ed. The unconstitutionality of Obama’s scheme needs more visibility.

elduende on August 22, 2009 at 10:08 AM

Cybergeezer on August 22, 2009 at 10:06 AM

Not ObamaNAZIm?

Right-brained on August 22, 2009 at 10:09 AM

75% of what DC does is unConstitutional.

jgapinoy on August 22, 2009 at 10:09 AM

The constitutional angle is very interesting indeed. These people agreed to uphold the Constitution when sworn into public office. These Liberals have also been trying to find a way around the Constitution for several generations now. Our founders created this document as a way of protecting the people from the federal government. The constitution is ours to protect or ours to lose.

Important times we are in…

Keemo on August 22, 2009 at 10:10 AM

Obama: Unconstitutional? You’ll have to do better than that.

Obamageddon.

Mojave Mark on August 22, 2009 at 10:11 AM

When’s the awards ceremony for this Liars Contest?

Cybergeezer on August 22, 2009 at 10:11 AM

The Constitution still exists, well, I’ll be damned.

Wade on August 22, 2009 at 10:11 AM

I’m pretty surprised nobody in the GOP has thought to mention this little detail.

Mord on August 22, 2009 at 10:11 AM

“General welfare” clause.

The statists see that as a blank check for literally anything.

SteveMG on August 22, 2009 at 10:12 AM

I see your Constitution and raise you a HopeNChangestitution.

Besides, Obama’s a Constitutional scholar. Therefore, he’d never back anything that was un-Constitutional. Q.E.D.

venividivici on August 22, 2009 at 10:12 AM

Half of what the Government does in unconstitutional.

We fought a revolution to get away from a government as unwieldy as this one.

gary4205 on August 22, 2009 at 10:13 AM

This administration considers the constitution a low hurdle when it was designed to be a wall. If we don’t get back to the basics soon America as a free country will fade into the history books.

HoustonRight on August 22, 2009 at 10:13 AM

Obama: Constitution? Constitution who? Oh that Constitution. Yeah well commerce clause or something don’t worry about it.

elduende on August 22, 2009 at 10:13 AM

And my neighbors elected a constitutional scholar to the presidency. Almost everything he has done is unconstitutional, he is unconstitutional!

farright on August 22, 2009 at 10:13 AM

Barry is a Constitutional scholar, after all, so he knows this.
Don’t have insurance? You’ll automatically be covered under The Plan.

TinMan13 on August 22, 2009 at 10:13 AM

Hence the reason to pack the courts with an “empathetic” judiciary willing to use the Constitution to “right” past wrongs and institute a sense of social “justice”. It really doesn’t matter what the Constitution says when judges can create Constitutional rights out of thin air since it is after all a “living, breathing document”. Judges have more power than most realize, especially then ones being placed in positions by Obama. Remember, no suits are brought against laws that are never enacted.

volnation on August 22, 2009 at 10:14 AM

Let us not forget the Vision of Frank Zappa when he wrote in 1979

This Is The Central Scrutinizer

It is my responsibility to enforce all the laws that haven’t been passed yet. It is also my responsibility to alert each and every one of you to the potential consequences of various ordinary everyday activities you might be performing which could eventually lead to *The Death Penalty* (or affect your parents’ credit rating). Our criminal institutions are full of little creeps like you who do wrong things…and many of them were driven to these crimes by a horrible force called MUSIC!

Our studies have shown that this horrible force is so dangerous to society at large that laws are being drawn up at this very moment to stop it forever! Cruel and inhuman punishments are being carefully described in tiny paragraphs so they won’t conflict with the Constitution (which, itself, is being modified in order to accommodate THE FUTURE).

The Mothers of Prevention featuring Barack Obama…

Mr. Bingley on August 22, 2009 at 10:15 AM

The unconstitutionality of Obama’s scheme needs more visibility to be ignored.

elduende on August 22, 2009 at 10:08 AM

FIFY

I’m pretty surprised nobody in the GOP has thought to mention this little detail.

Mord on August 22, 2009 at 10:11 AM

They no longer have the guts, having become over the years Democrats Lite.

Liam on August 22, 2009 at 10:15 AM

Barry is a Constitutional scholar, after all, so he knows this.

I hate it when someone says exactly what I was gonna say 1 minute earlier!
: P

jgapinoy on August 22, 2009 at 10:15 AM

I pesonally believe that one of the numerous days Congress is not in session a week should be devoted to them actually learning wtf is in the constitution. 10-1 elected officials know less about what is in there then your average man off the street.

Government is good about dictating training requirements for positions, especially in the military. Yet Congress has none. Hmmmmmmmmm.

Congress – Making rules that don’t apply to us for 100 years and counting.

Right-brained on August 22, 2009 at 10:15 AM

This was the same question I posed in the Green Room in on of the posts there.

What a bizarre concept is a tax to enforce a health care mandate.

Is this even Constitutional? Can they tax you on something you don’t use? They could tax you in the event you do use it, but not until you do.. But I don’t see how this is within constitutional law.

There are only two kinds of taxes, direct apportioned; and indirect non-apportioned (excise). This is neither. I can see a SC case on this should someone be “taxed” for non-compliance. You would think Obama would know this, being a Constitutional law professor.

Patriot Vet on August 18, 2009 at 7:00 PM

Patriot Vet on August 22, 2009 at 10:16 AM

hmm. I guess the evil McBushChimpyHaliburtonCheney regime didn’t actually shred it after all. Go figure!

JamesLee on August 22, 2009 at 10:16 AM

However, that doesn’t apply here for three reasons.

You forgot reason #4, Ed: no one is required to have a car. If I want to avoid car insurance, I have the option of not buying a car and taking the bus or a bike or whatever.

What’s my option to avoid health insurance? Die?

Lehosh on August 22, 2009 at 10:16 AM

Another funding mechanism bites the dust.

sammypants on August 22, 2009 at 10:16 AM

Mr. Bingley on August 22, 2009 at 10:15 AM

If nothing influences anybody in any way, why is advertising a multi-billion dollar industry?

jgapinoy on August 22, 2009 at 10:18 AM

I don’t want my medical records on the internet or in the hands of Obama cronies. I’m wondering if there might be a way to use liberal dogma–the right to privacy–to fight the medical records b.s.

flyfisher on August 22, 2009 at 10:19 AM

A single document enumerates Congressional power, and former Department of Justice attorneys David Rivkin and Lee Casey have some trouble finding that power in it. They argue, with appropriate citations of precedent, that HR3200 and any other bill that attempts to impose mandates will violate the Constitution:

I AGREE.

Can anyone identify one touch of specialized education and/or training possessed by Nancy Pelosi that reflects her ability to make ANY changes to our nation as she’s attempting? Obviously, the Constitution is not something the current Congress understands or respects.

Didn’t they all swear, though, to protect and defend the U.S. Constitution? Didn’t Obama? What part of that do they even anticipate justifies this entire Obamacare effort they’re engaged in?

I anticipate that, if they manage to shove this thing on into law, that they’ll be presented with a series of Supreme Court cases holding them accountable for violating the Constitution, along with their Oaths of Office (which would be sweet, indeed).

Lourdes on August 22, 2009 at 10:20 AM

I don’t want my medical records on the internet or in the hands of Obama cronies. I’m wondering if there might be a way to use liberal dogma–the right to privacy–to fight the medical records b.s.

flyfisher on August 22, 2009 at 10:19 AM

GE is in charge of that debaucle. Sing it now: “GE… We’ll Take Over Your Life”! New slogan.

Key West Reader on August 22, 2009 at 10:20 AM

The Constitution applies to the statist only when it suits his purposes, and is ignored when it does not.

As much as I loathe the concept of “health care/insurance reform” (or whatever it is they are calling it today) and can dispatch it based upon its own merits, I too think that it does not even pass the constitutional smell test.

For that matter, so much of what the federal government does is based upon a judicial house of cards that are the decisions of the Supreme Court since FDR.

Isn’t this what the debate is really about? It is much more than the discreet issue of health care or cap and trade. It is the discussion about the relationship between the citizen and his government.

And those who pretend to be our representatives, but act as our rulers, are getting an ear full.

Anyone but the incumbents 2010!

turfmann on August 22, 2009 at 10:20 AM

I don’t want my medical records on the internet or in the hands of Obama cronies. I’m wondering if there might be a way to use liberal dogma–the right to privacy–to fight the medical records b.s.

flyfisher on August 22, 2009 at 10:19 AM

Ugh…I didn’t even think of that…Yeah, that’s unsettling, knowing the government will have my medical records.

JetBoy on August 22, 2009 at 10:21 AM

Are these guys wise latinas? No? Then they need to STFU!

BPD on August 22, 2009 at 10:21 AM

I was wondering this same thing Ed. I have no doubt that they will slam it through Congress if they have the opportunity and President Obama will sign it.

I wonder if Landmark Legal or some other group is already working on the lawsuit. We have to assume HR3200 is going to pass in one way or another so surely someone is working on the legal challenge.

What kind of argument will the other side use to get around this little problem I wonder.

Pilgrim on August 22, 2009 at 10:21 AM

And Obama continues to rationalize and justify his efforts “to reform health care” as he calls it (also a lie right there but that’s what he’s saying about what he’s doing), while that in and of itself (taking him at face value) is a violation of his Oath of Office. There’s nothing in the Constitution that endows any President with such a ‘right’ to do such a thing.

Not that it’s reform he’s seeking but a destruction-of with replacement-of in his pipeline (none of which, either, is endowed to him as President).

Lourdes on August 22, 2009 at 10:22 AM

I had my doubts that the US would go down without the 3rd branch getting into the picture somehow. John Roberts has a chance to make history. Let’s see if he takes it.

JiangxiDad on August 22, 2009 at 10:23 AM

I’m pretty surprised nobody in the GOP has thought to mention this little detail.

Mord on August 22, 2009 at 10:11 AM

The GOP has relied upon talk radio, Fox News and now bloggers to carry their water for at least the past 10-15 years. It truly is sickening. Then comes along a very powerful voice in the GOP, in fact a few very powerful voices have emerged within the GOP in Palin and Bachmann, and what does the GOP do with these powerful voices; seek to destroy them.

Rock on Palin & Bachmann!

Keemo on August 22, 2009 at 10:25 AM

Si si puede!

They are allowed to write bills in which they prevent the Court from deciding Constitutionality under Article III:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

unclesmrgol on August 22, 2009 at 10:25 AM

What kind of argument will the other side use to get around this little problem I wonder.

Pilgrim on August 22, 2009 at 10:21 AM

Gov’t: Uh, we have an army that includes tanks and artillery…

Liam on August 22, 2009 at 10:25 AM

And, everyone ought to recall Hillary Clinton’s declarations while from the White House as First Lady (not even an elected official at that), that Hawaii’s “health care system” was example for the rest of the nation. She made numerous declarations such as that with Bill Clinton’s support.

That system in Hawaii was shown to be a failure by process and economics. Since scrapped because it was a failure (once a “government option” is introduced, those who had previously been purchasing private insurance dropped that and assumed the government option, allowing the taxpayers to foot the bill — so Hawaii’s plan was scrapped due to that primary problem).

Ever hear any Democrat lately touting the Hawaiian health care plan? Nooo.

Lourdes on August 22, 2009 at 10:25 AM

I don’t want my medical records on the internet or in the hands of Obama cronies. I’m wondering if there might be a way to use liberal dogma–the right to privacy–to fight the medical records b.s.

flyfisher on August 22, 2009 at 10:19 AM

I have actually wondered about that. I think it would be hilarious if we could use the main reasoning of RoeVWade (Right to Privacy) to shut down the largest liberal goal since that decision.

JamesLee on August 22, 2009 at 10:26 AM

What kind of argument will the other side use to get around this little problem I wonder.

Pilgrim on August 22, 2009 at 10:21 AM

I’m the black President. You’re racist, Supreme Court, if you don’t allow this.

On the serious side, that is a good question. One can only imagine since the Dem Congressional lawyer team writes 1000 page bills on a whim.

You can be certain that it will be almost unitelligable and uber-highly nuanced.

Right-brained on August 22, 2009 at 10:27 AM

Fight the IRS???

Bwahahahahahahahahahaha

You might be able to but once your employer gets a set of instructions from Uncle Sugar your check is going to get dinged regardless of the constitutionality of it. Add to that all the penalties and interest (the IRS golden bullet) and you are scroooooomed. You have to pay for a lawyer and if there is one thing the IRS knows it is that 95% of us can’t afford to fight them.

Welcome back debtors prisons. I’ll be in room 1040A.

Limerick on August 22, 2009 at 10:28 AM

I don’t want my medical records on the internet or in the hands of Obama cronies. I’m wondering if there might be a way to use liberal dogma–the right to privacy–to fight the medical records b.s.

flyfisher on August 22, 2009 at 10:19 AM

Ugh…I didn’t even think of that…Yeah, that’s unsettling, knowing the government will have my medical records.

JetBoy on August 22, 2009 at 10:21 AM

I have been blessed with fine health, so there’s nothing in my records to embarrass me–it’s a matter of principle.

How many women want it getting out that they’ve had abortions? Or their daughter had an abortion? Or who wants their neighbors to know they have herpes? The bottom line is this is none of the government’s business. And believe me, if the government gets the information things will get out. I used to eat lunch with a group of IRS agents on a regular basis. Every single time they discussed personal business of various citizens, usually prominent citizens. It’s just human nature.

flyfisher on August 22, 2009 at 10:28 AM

turfmann on August 22, 2009 at 10:20 AM

Holy Cow, Turfman,this is what this whole government take over is all about. We are having to live by the “Rules for Radicals” and what we need is the Constitution. Hopefully we can turn this country around and start our climb out of this hell hole to backing the Constitution. That is what this fight is all about.

BetseyRoss on August 22, 2009 at 10:28 AM

That’s a nice supreme court there, it’d be a shame if something happened to it. Seems like there is room for two more.

Our country did this dance before with the last fascist we had in office.

jhffmn on August 22, 2009 at 10:30 AM

I’m going to refuse the offer to buy it.
Refuse the fines.
End up in Jail.
Hire Mark Levin to represent me.

See you at SCOTUS…

katy on August 22, 2009 at 10:30 AM

I was just outside thinking about this, and you’re absolutely right. And so many progressive think the constitution is a living breathing document open for restructure and reinterpretation as they see fit for the future. Why add amendments when you can appoint judges that see the constitution the way you see it?

andrewtf on August 22, 2009 at 10:31 AM

unclesmrgol on August 22, 2009 at 10:25 AM

That notion was settled here Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

elduende on August 22, 2009 at 10:31 AM

As much as I loathe the concept of “health care/insurance reform” (or whatever it is they are calling it today) and can dispatch it based upon its own merits, I too think that it does not even pass the constitutional smell test.

For that matter, so much of what the federal government does is based upon a judicial house of cards that are the decisions of the Supreme Court since FDR.

Isn’t this what the debate is really about? It is much more than the discreet issue of health care or cap and trade. It is the discussion about the relationship between the citizen and his government.

And those who pretend to be our representatives, but act as our rulers, are getting an ear full.

Anyone but the incumbents 2010!

turfmann on August 22, 2009 at 10:20 AM

EXACTLY. Our Constitution only exists, in reality and practice, if it’s enforced and adhered to.

What the Left has been doing — along with the Judiciary corrupted process by the Left of “legislating from the bench” (making up or creating laws from the bench to accommodate their socio-political wants) — is essentially REPLACING the Constitution with an ongoing avalanche process of legislation upon legislation from Congress that does not consider Constitutional limitations and boundaries.

This is a process of actually rewriting the Constitution over time to eventually end up with something else as to government in the U.S. If Congress isn’t paying attention to the Constitution — worse, not respecting the boundaries it establishes for our government — then all hope that the Constitution even exists is gone.

Lourdes on August 22, 2009 at 10:31 AM

Universal health care and freedom are not compatible.

drjohn on August 22, 2009 at 10:31 AM

Well this is all very interesting and a good argument – I’ll have to defer to The Messiah – I trust his judgment – he’s never told the truth yet – and I love a man that’s consistent – I’ll never forget Michelle Messiah saying, “This is the first time I’ve been proud of America!” That just tugs at you doesn’t it…………….what a couple! They make the Clinton’s look positively……….well…..honest and truthful!

Cinday Blackburn on August 22, 2009 at 10:32 AM

I’m going to refuse the offer to buy it.
Refuse the fines.
End up in Jail.
Hire Mark Levin to represent me.

See you at SCOTUS…

katy on August 22, 2009 at 10:30 AM

We will go down together miss katy.

thomasaur on August 22, 2009 at 10:32 AM

thomasaur on August 22, 2009 at 10:32 AM

Amen!

katy on August 22, 2009 at 10:33 AM

Rep. Kathy Dahlkemper, D-Pa.: “We do lots of things that aren’t in the Constitution.”

JohnJ on August 22, 2009 at 10:33 AM

Then comes along a very powerful voice in the GOP, in fact a few very powerful voices have emerged within the GOP in Palin and Bachmann, and what does the GOP do with these powerful voices; seek to destroy them.

Rock on Palin & Bachmann!

Keemo on August 22, 2009 at 10:25 AM

Huh?!?

(Emphasis in quoted portion above, added.)

Lourdes on August 22, 2009 at 10:33 AM

Ochimpy is a Fascist/Marxist/Commie all rolled into one unhallowed Dybbuk.

csdeven on August 22, 2009 at 10:34 AM

To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as its been interpreted and Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties.

Barack Omama

“Nuf said

Beaglemom on August 22, 2009 at 10:34 AM

We the People know it is unconstitutional.

publiuspen on August 22, 2009 at 10:35 AM

I don’t want my medical records on the internet or in the hands of Obama cronies. I’m wondering if there might be a way to use liberal dogma–the right to privacy–to fight the medical records b.s.

flyfisher on August 22, 2009 at 10:19 AM

I have actually wondered about that. I think it would be hilarious if we could use the main reasoning of RoeVWade (Right to Privacy) to shut down the largest liberal goal since that decision.

JamesLee on August 22, 2009 at 10:26 AM

I’m a tax attorney, so this is beyond my purview. It’s been years since I’ve seriously considered Roe and related cases. I mentioned it only because it makes some sense, to me at least. The libs argue about keeping everything between a doctor and a woman private, to the point of even the husband having no say or right to notification. Well, I want the same right of privacy. I want whatever I tell my doctor to be secret. I want his advice regarding my health to be between my physician and me. If the government absolutely has to get involved, they simply need to stroke the check. What they are paying for is none of their business. But alas, that’s where they fall apart for everyone knows the check writer suddenly has an interest. An interest, which in my opinion, violates the spirit of Roe.

flyfisher on August 22, 2009 at 10:35 AM

Great argument, but like the arguments that firing a private sector CEO, nationalizing auto companies and banks, etc are *also* unconstitutional, this logic and $5.00 will buy you a cup of coffee.

Who’s going to bring the suit and when? Having this opinion, as sound as it seems to be, isn’t enough to bring a lawsuit, is it? Do we have to wait until it’s passed and the first group of folks are forced to buy healthcare, and then *they* can sue, if they want to?

Midas on August 22, 2009 at 10:35 AM

“General welfare” clause. The statists see that as a blank check for literally anything.
SteveMG on August 22, 2009 at 10:12 AM

Article 1 Section 8 of the Constitution enumerates Congress’ power. The 10th Amendment limits their power to those enumerated in the Constitution. Like you, I’ve heard some try to defend this power grab by hiding behind the “general welfare” phrase. If general welfare means health care for individuals, it also gives them power over everything in our lives, from what we wear, to what we eat, to how much we exercise, to the “right” to housing, etc. Therefore, why bother to enumerate powers at all if the founders meant for general welfare to be all encompassing?

Patrick S on August 22, 2009 at 10:35 AM

It’s blatantly unconstitutional in the most personal way: under this plan, you must buy something because you dare to be alive.

This will go down in flames, if not by the SCOTUS, then by like-minded conservatives banding together to say, “Not in my backyard.”

Never, ever underestimate the power of a free peope to peacefully rise and say, “NO”. We’re seeing it in action right now, today, the entire country over.

Grace_is_sufficient on August 22, 2009 at 10:36 AM

The sad thing is, the prevailing mindset will be: “so what if it is?” In order for it to be stopped on the grounds it being unconstitutional some party will have to sue the U.S. showing that they have somehow been harmed by either themselves being forced to carry gubmint health insurance, or a business will have to show it is being harmed. I’m guessing some brave health insurance provider will have to step up. And thanks to FDR, the SCOTUS will use likely stare decisis when ruling on any challenge.

Fed45 on August 22, 2009 at 10:36 AM

flyfisher on August 22, 2009 at 10:35 AM

Once this mess is in full swing the doctors will be employees of the government an their files will be govt. property.

thomasaur on August 22, 2009 at 10:38 AM

“Why is this constitutional?”

Obama: “Shut up. That’s why.”

PackerBronco on August 22, 2009 at 10:38 AM

thomasaur on August 22, 2009 at 10:32 AM
Amen!

katy on August 22, 2009 at 10:33 AM

Count me in.

I have recently wondered what kind of black market for medical care will eventually open. I’m guessing the wealthy not politically connected will find a way to get the services needed. Remember money always talks. This country has alway’s found a way to fill a void.

HoustonRight on August 22, 2009 at 10:38 AM

Welcome to Obamanizm!

Cybergeezer on August 22, 2009 at 10:06 AM

Socialism/Fascism by another name.

I’m pretty surprised nobody in the GOP has thought to mention this little detail.

Mord on August 22, 2009 at 10:11 AM

The RINO’s themselves have forgotten the Constitution; however, in our townhall with Tom Coburn last week, he stated that he opposes Obamacare on financial and Constitutional grounds. (I was really impressed when he pulled his copy of the Constitution out of his coat pocket. Now for a RINO that would be a prop, but not for Coburn.) He gets it, but for every Coburn there is a Grahamnesty.

Christian Conservative on August 22, 2009 at 10:39 AM

Woop

Looks like I’ll be on Obama Care come January ’10.

blatantblue on August 22, 2009 at 10:39 AM

So, aside from the issue of something being blatantly unconstitutional, the really important issue is who will have legal standing to bring the challenge? My understanding is that this has been used to swat away challenges on other issues that might otherwise have prevailed had the court actually taken them up.

Steve H in AZ on August 22, 2009 at 10:39 AM

“After ObamaCare Passes?”

JoeySlippers on August 22, 2009 at 10:39 AM

In other words, individual mandates are unconstitutional, regardless of whether they’re explicit or buried in tax policy.

A lawyer tells me that the way around that is for Obama to create a medical insurance company and artifically lower the price to kill of private insurance.

And that Obama can do that with all industries.

drjohn on August 22, 2009 at 10:39 AM

Where in the Constitution does it say that my money should go to treat people that don’t have private insurance? This is what happens now. Everyone has health coverage, just not everyone is paying for it. The only way to make a system without an individual mandate fair is to deny care to people who don’t buy insurance. Not even emergency care. Why should they get it if they are not paying in? If you are 20 years old and choose not to buy insurance and come down with cancer, just go home and lay in bed and die. Is our society prepared to do this? If not, people who buy insurance will be subsidizing those who don’t through higher taxes and premiums if there is no individual mandate.

Mark1971 on August 22, 2009 at 10:40 AM

Woop

Looks like I’ll be on Obama Care come January ‘10.

blatantblue on August 22, 2009 at 10:39 AM

It doesn’t kick in until 2013. Stock up on chicken soup and keep a close watch on your tonsils and feet.

myrenovations on August 22, 2009 at 10:41 AM

Lourdes on August 22, 2009 at 10:33 AM

Republicans have been trying to “purge” Conservative’s from their brand for several years now. Conservatism has been under heavy attack this past decade minimum, and Liberals are not the only attackers.

Keemo on August 22, 2009 at 10:41 AM

Wickard v. Filburn was decided during the golden age of socialism in this country. The 2005 decsion was more a matter of policy than a reaffirmation of the power of the commerce clause. Therefore I think we need to figth this growing government takeover of our freedoms by trying to limit the commerce clause. If the Congress is limited in the commerce it can regulate we will have more freedoms

unseen on August 22, 2009 at 10:42 AM

Patrick S on August 22, 2009 at 10:35 AM

Good point. And basically a paraphrase of what Jefferson wrote when he was kicking Hamilton’s ass over the topic of a national bank

To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

Than we have Madison, who wrote:

“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.”

Of course, what the hell do those guys know? Madison only authored the Constitution.

Fed45 on August 22, 2009 at 10:43 AM

A lawyer tells me that the way around that is for Obama to create a medical insurance company and artifically lower the price to kill of private insurance.

And that Obama can do that with all industries.

drjohn on August 22, 2009 at 10:39 AM

I’ve thought of that as well. It’s a move that would make the Chinese proud. That’s exactly how their government-sponsored industries operate.

flyfisher on August 22, 2009 at 10:44 AM

“General welfare” clause. The statists see that as a blank check for literally anything.
SteveMG on August 22, 2009 at 10:12 AM

Article 1 Section 8 of the Constitution enumerates Congress’ power. The 10th Amendment limits their power to those enumerated in the Constitution. Like you, I’ve heard some try to defend this power grab by hiding behind the “general welfare” phrase. If general welfare means health care for individuals, it also gives them power over everything in our lives, from what we wear, to what we eat, to how much we exercise, to the “right” to housing, etc. Therefore, why bother to enumerate powers at all if the founders meant for general welfare to be all encompassing?

Patrick S on August 22, 2009 at 10:35 AM

Any comments as to just how it is possible for “we the people” to replace a government that has become tyrannical? I’m posing this question generally to all because I admittedly don’t have an idea in this regard.

The Constitution says that the American people must or are to (it’s a declarative) replace government if it becomes (unacceptable) (strangling, etc.) to us, but, honestly, I don’t even know how such would be possible today given the size of our population (it seems a quite do-able thing if there is limited population as in thirteen states and such, but as to how that’d be possible in our current size as a nation, I haven’t the foggiest).

Lourdes on August 22, 2009 at 10:44 AM

So, aside from the issue of something being blatantly unconstitutional, the really important issue is who will have legal standing to bring the challenge? My understanding is that this has been used to swat away challenges on other issues that might otherwise have prevailed had the court actually taken them up.

Steve H in AZ on August 22, 2009 at 10:39 AM

IF it were to pass, and the Gov’t were able to fight off challenges on grounds that didn’t pass the smell test with the populace, I suspect we’d see a very large tax revolt.

Patrick S on August 22, 2009 at 10:44 AM

Can the constitution require atheists to pay a penalty for not practicing a religion?

fourdeucer on August 22, 2009 at 10:46 AM

IF it were to pass, and the Gov’t were able to fight off challenges on grounds that didn’t pass the smell test with the populace, I suspect we’d see a very large tax revolt.

Patrick S on August 22, 2009 at 10:44 AM

The states have two mechanisms (nuclear options) to challenge laws they feel are unconstitutional called interposition and nullification.

elduende on August 22, 2009 at 10:47 AM

Republicans have been trying to “purge” Conservative’s from their brand for several years now. Conservatism has been under heavy attack this past decade minimum, and Liberals are not the only attackers.

Keemo on August 22, 2009 at 10:41 AM

Oh, I see, Conservatives. But us Conservatives have been trying to purge the RINOs, too, so I wouldn’t generalize that it’s “the GOP” because I doubt there are many today who would agree that the GOP is defined by the RINO element.

There IS a disconnect between Libertarians in the GOP and Conservatives, I agree with that. Among the Libertarians can be found many who Conservatives would describe as RINOs, in my experience.

Lourdes on August 22, 2009 at 10:47 AM

See?

Unfortunately courts cannot issue an advisory opinion as to the constitutionality of the bill were it to be passed into law. It would then have to be challenged in court.

The DOJ and the president’s legal advisers should make the President and Congress aware of this, but I don’t believe they will, ie. Eric Holder, and I don’t think President Obama or the Dems would listen anyway. So all this time, effort, and more of our money gets spent and wasted.

skatz51 on August 22, 2009 at 10:47 AM

.. but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. ..

And there-in lies the crux of the conflict at hand. Between those that adhere to the to the concept of the dignity of the individual, and those that do not trust to leave well enough alone and that anything should be outside the scope of their purview.

A fuuny thing that, trust that is. It has been my experience that those who are most distrustful of others generally, eventually tend most often to be the ones caught with their hand’s in the cookie jar. Something I seem to remember from a phsyche class, that the human condition does not readily accept or allow for motives or morality greater than one’s own. Part of the Id of our ego’s so to speak.

It is kind of like the insanely jealous lover who always questions their partner’s where-abouts and actions. If you are in a relationship like this, 9 times out of 10 it will turn out that it is the jealous one that is the party guilty of having an affair.

Keep this in mind as almost daily new revelations come out about how many suitors this administration is found to be in bed with.

Archimedes on August 22, 2009 at 10:47 AM

The next time Conservatives have power they need to push hard to eliminate payroll withholding of income taxes. If Americans were forced to write monthly checks to Uncle Sam a whole lot of nonsense would stop.

flyfisher on August 22, 2009 at 10:47 AM

Lourdes on August 22, 2009 at 10:44 AM

All of the voters would have to get behind cleaning up the govt. and since 1/2 depends on the same govt. to take care of them it will be difficult to say the least.

thomasaur on August 22, 2009 at 10:48 AM

5 “justices” on this court approve government taking your land for cheap and giving it to a fatter taxpayer, and love the idea that you shall not be heard on politics when you might sway an election. So I wouldn’t bet my life that they won’t buy the Tsar’s argument that hey, socialized medicine is cool, but it won’t work if I can’t force you to get insurance, so ergo…

Remember most everybody pitching Mitt Romney, Hugh Hewitt and the rest of Townhall, were solidly behind insurance mandates.

And supposedly “centrist” voices mock the idea of arguing “the Constitution” to government. ‘Do you also want women not to have the vote?’ they ask. Apparently a high school education in civics gives the idea that the Constitution is some kind of hole we managed to crawl out of through a willingness to improvise.

So we’re really behind the eight ball on this one. I agree with Katy and Thomasaur, yell like Hell to stop it but if we lose, don’t cooperate but work to make the system impracticable. This is not the time to go along out of respect for the system. This is a time to throw monkeywrenches to remind people there IS a system, not arbitrary power by whoever scrambles to the top of the heap.

Chris_Balsz on August 22, 2009 at 10:49 AM

The states have two mechanisms (nuclear options) to challenge laws they feel are unconstitutional called interposition and nullification.
elduende on August 22, 2009 at 10:47 AM

I’m not familiar with those options. So does that mean that a single state can blow up the whole deal with a successful challenge? Please say yes….Please say yes.

Patrick S on August 22, 2009 at 10:49 AM

Can Congress force me to buy health insurance?

I hate to be a grammar Nazi, but I think you meant to ask MAY Congress force me to buy health insurance? As in, are they permitted to do so by the United States Constitution.

You see, when you say CAN they do it, you are asking whether it is physically possible for them to do so.

…And, btw, the answer to both questions is no.

logis on August 22, 2009 at 10:51 AM

Patrick S on August 22, 2009 at 10:49 AM

Nullification was used by SC. President Andrew Jackson, and then President Lincoln, were given troops by Congress to squash ‘nullification’.

That doesn’t mean we shouldn’t use it. This isn’t 1830 or 1861. Federal troops marching into any State capitol would be the next shot heard round the world.

Limerick on August 22, 2009 at 10:52 AM

Lourdes on August 22, 2009 at 10:47 AM

Agreed…

Keemo on August 22, 2009 at 10:53 AM

“General welfare” clause. The statists see that as a blank check for literally anything.
SteveMG on August 22, 2009 at 10:12 AM

That clause is in the Preamble of the Constitution, the raison d’etre of the Constitution, the reason it was brought into being. It doesn’t have the force of law, like marriage vows don’t until both parties say, “I do.”

Liam on August 22, 2009 at 10:54 AM

We’re so far beyond “enumerated powers” it’s laughable. If this is succesfully argued, then comes a suit challenging the federal govt’s power to make me buy retirement insurance, pay for food stamps, welfare, public housing, fund Dept of Ed, Dept of Commerce, you name it.

I was wondering if e.g. Landmark Legal was just biding its time until something passed, then unloading the lawsuits.

Akzed on August 22, 2009 at 10:55 AM

I’m not familiar with those options. So does that mean that a single state can blow up the whole deal with a successful challenge? Please say yes….Please say yes.

Patrick S on August 22, 2009 at 10:49 AM

They are old Federalist doctrines that haven’t been used in at least 150 years but I think they have to be done on a state by state basis, so one state can’t blow up the entire law for any other state.

elduende on August 22, 2009 at 10:55 AM

I had my doubts that the US would go down without the 3rd branch getting into the picture somehow. John Roberts has a chance to make history. Let’s see if he takes it.

JiangxiDad on August 22, 2009 at 10:23 AM

Yet another reason to put the health and well-being of Roberts, Scalia, Thomas, Alito and, yes, even Kennedy on all our daily prayer lists.

TXUS on August 22, 2009 at 10:56 AM

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