Pelosi: Constitutionality of individual mandates not “serious” question

posted at 1:36 pm on October 23, 2009 by Ed Morrissey

First Patrick Leahy scoffed at questions over whether the federal government has the authority to order Americans to buy a particular product, even though that has never happened in our 233-year history, and now the Speaker of the House claims that the question is “not serious.” CNS News has the audio of Nancy Pelosi providing the Democratic dodge on the constitutionality question:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi: “Are you serious? Are you serious?”

CNSNews.com: “Yes, yes I am.”

Pelosi avoided answering the question, probably because she doesn’t have an answer.  Her spokesman said that it was “not a serious question,” but if so, one would presume that Pelosi or her office could provide an easily-corroborated answer.  After all, the Constitution is where Congress derives all of its authority.  It’s not exactly a lengthy document.  How difficult is it to cite the clause that enables Congress to impose a mandate on its citizens to spend money on anything but a tax?

Well, as it turns out, pretty darned difficult.  The interstate commerce clause doesn’t apply because Congress doesn’t allow for interstate commerce in health insurance.  The “general welfare” clause has never applied to individual mandates, which is why neither Leahy or Pelosi will invoke it publicly.  If they trot that out in front of the Supreme Court, they’ll essentially be arguing that the federal government has the authority to impose any kind of mandates at any time on anyone in the country, which makes the limitations of power in the Constitution meaningless — and by extension, makes the Supreme Court meaningless as well.  Good luck getting them to buy into that policy.


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Nobody who questions the power of the queen, can possibly be serious.

So saith the queen herself.

MarkTheGreat on October 23, 2009 at 1:37 PM

Clueless!

Freddy on October 23, 2009 at 1:37 PM

Pelosi: Constitutionality of individual mandates not “serious” question

John the Libertarian on October 23, 2009 at 1:37 PM

Why?

Because Nancy’s vast experience with event planning and marrying billionaires told her so and she’s the Queen Bee.

Would a serious question be, why is this corrupt, incompetent idiot Speaker of the House of Representatives?

Worst Speaker of the House ever, it’s not even up for debate.

NoDonkey on October 23, 2009 at 1:38 PM

The news gets better and better…a constitutional challenge is all Obambi needs….

lovingmyUSA on October 23, 2009 at 1:38 PM

If we can require individuals to buy insurance, surely we can require all able bodied adults to work for the govt, sometimes in life threatening circumstances for 3 to 5 years at a time.

MarkTheGreat on October 23, 2009 at 1:38 PM

Are you kidding me? These people have got to be voted out while it is still Constitutional to do so!!!

Christian Conservative on October 23, 2009 at 1:38 PM

Pelosi: What’s a “CON-STI-TOO-SHUN?”

Good Lt on October 23, 2009 at 1:39 PM

The “general welfare” clause has never applied to individual mandates, which is why neither Leahy or Pelosi will invoke it publicly. If they trot that out in front of the Supreme Court, they’ll essentially be arguing that the federal government has the authority to impose any kind of mandates at any time on anyone in the country, which makes the limitations of power in the Constitution meaningless — and by extension, makes the Supreme Court meaningless as well. Good luck getting them to buy into that policy.

CNSNews.com
Hoyer Says Constitution’s ‘General Welfare’ Clause Empowers Congress to Order Americans to Buy Health Insurance
Wednesday, October 21, 2009
By Matt Cover, Staff Writer

House Majority Leader Steny Hoyer (D-Md.) (AP Photo)(CNSNews.com) – House Majority Leader Steny Hoyer (D-Md.) said that the individual health insurance mandates included in every health reform bill, which require Americans to have insurance, were “like paying taxes.” He added that Congress has “broad authority” to force Americans to purchase other things as well, so long as it was trying to promote “the general welfare.”

The Congressional Budget Office, however, has stated in the past that a mandate forcing Americans to buy health insurance would be an “unprecedented form of federal action,” and that the “government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Hoyer, speaking to reporters at his weekly press briefing on Tuesday, was asked by CNSNews.com where in the Constitution was Congress granted the power to mandate that a person must by a health insurance policy. Hoyer said that, in providing for the general welfare, Congress had “broad authority.”

“Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end,” Hoyer said. “The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.”

Hoyer compared a health insurance mandate to the government’s power to levy taxes, saying “we mandate other things as well, like paying taxes.”

The section of the Constitution Hoyer was referring to, Article I, Section 8, outlines the powers of Congress, including raising taxes, but not the purchasing any type of product or service. The opening paragraph of Section 8 grants Congress the power to raise taxes to, among other things, “provide for the … general welfare of the United States.”

Section 8 partly reads: “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; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The Constitution then details the specific powers of Congress, including raising an Army and Navy, regulating commerce between states, and to “make all laws necessary and proper” for the carrying out of these enumerated powers.

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” concludes Section 8.

CNSNews.com also asked Hoyer if there is a limit to what Congress can mandate that Americans purchase and whether there is anything that specifically could not be mandated to purchase. Hoyer said that eventually the Supreme Court would find a limit to Congress’ power, adding that mandates that unfairly favored one person or company over another would obviously be unconstitutional.

“I’m sure the [Supreme] Court will find a limit,” Hoyer said. “For instance, if we mandated that you buy General Motors’ automobiles, I believe that would be far beyond our constitutional responsibility and indeed would violate the Due Process Clause as well – in terms of equal treatment to automobile manufacturers.”

Hoyer said that the insurance mandate was constitutional because Congress is not forcing Americans to buy one particular policy, just any health insurance policy.

“We don’t mandate that they buy a particular insurance [policy] but what we do mandate is that like driving a car — if you’re going to drive a car, to protect people on the roadway, and yourself, and the public for having to pay your expenses if you get hurt badly – that you need to have insurance,” said Hoyer.
http://cnsnews.com/news/article/55851

Chris_Balsz on October 23, 2009 at 1:39 PM

Beaten by seconds! But yes, they do want to go there.

Chris_Balsz on October 23, 2009 at 1:40 PM

Constitution, schmonstitution.
Mmmmm, mmmm, mmmmm.

crash72 on October 23, 2009 at 1:40 PM

The interstate commerce clause doesn’t apply because Congress doesn’t allow for interstate commerce in health insurance.

Good point there.

forest on October 23, 2009 at 1:41 PM

Chris_Balsz on October 23, 2009 at 1:40 PM

Ha! Great minds….

aquaviva on October 23, 2009 at 1:41 PM

Ed, thanks for providing this video from eyeblast, so I can see it at work.

rightside on October 23, 2009 at 1:41 PM

Why does’nt she just ask Obama, he’s a, er, constitutional lawyer.

PatriotRider on October 23, 2009 at 1:41 PM

Stupid is as stupid does…
Forrest Gump

pckle on October 23, 2009 at 1:41 PM

I belive, personally, that the mandate will be challenged within a day.
It is simply not constitutional

AnninCA on October 23, 2009 at 1:41 PM

What doesn’t the general welfare clause permit government to do?

Someone yesterday said they can make you buy toothpaste or drugs.

What can’t they make you do? Anything? (in terms of commerce, of course – obviously making you speak or attend church or whatever would be damn near impossible).

lorien1973 on October 23, 2009 at 1:42 PM

“You will respect my Authohity!”

Romeo13 on October 23, 2009 at 1:42 PM

The news gets better and better…a constitutional challenge is all Obambi needs….

lovingmyUSA on October 23, 2009 at 1:38 PM

A career change is what the filthy lying coward needs!

That being said, you are correct. State seizure of healthcare is going to be difficult enough without getting a Constitutional challenge thrown into the mix. It will be interesting to see if they attempt to go forward with the Leahy/Pelosi attitude or if they throttle back to avoid this particular battle.

highhopes on October 23, 2009 at 1:43 PM

Chris_Balsz on October 23, 2009 at 1:39 PM

So simple a Kindergardener can understand. That, of course, leaves out those sterling, highly intellectual legal types running ruining this Country.

SeniorD on October 23, 2009 at 1:43 PM

Good point there.

forest on October 23, 2009 at 1:41 PM

On the other hand, people who buy insurance sometimes travel interstate.
Or the food they eat sometimes has travelled interstate.
Or the documents their insurance policy was written on might have been printed out of state.

Don’t you know, that the interstate commerce clause covers everything the govt wants it to cover.

MarkTheGreat on October 23, 2009 at 1:43 PM

Constitution, schmonstitution.
Mmmmm, mmmm, mmmmm.

crash72 on October 23, 2009 at 1:40 PM

Heh. You didn’t finish. Mmmm mmmm mmm Barack Hussein Obama. He sh*ts gold and I love him so…Mmmm mmmm mmm Barack Hussein Obama!

NathanG on October 23, 2009 at 1:43 PM

Americans to buy a particular product, even though that has never happened in our 233-year history…..

Until just recently. Has anyone tried to unplug their cable TV? You don’t get that analog signal anymore right?

rollthedice on October 23, 2009 at 1:43 PM

Vote the bum b!tch out!

NathanG on October 23, 2009 at 1:44 PM

Beaten by seconds! But yes, they do want to go there.

Chris_Balsz on October 23, 2009 at 1:40 PM

We need to get the moderator to extend the time stamp out to seconds.

MarkTheGreat on October 23, 2009 at 1:44 PM

Pelosi avoided answering the question, probably because she doesn’t have an answer.

Idiot!

BigMike252 on October 23, 2009 at 1:44 PM

It’s the mentality of the left. The constitution to them is ‘imperfect’ and out-of-date. In their minds they are much more empathetic and intelligent than the “so-called Founders”. Times are different now, they say, and we must progress as a society. It’s just how they think.

CityFish on October 23, 2009 at 1:44 PM

Chris_Balsz on October 23, 2009 at 1:39 PM

I got to tell Hoyer that he sucks, in person, a few weeks back. It was awesome. He just smirked and kept walking.

No retort – mind you.

Joe Caps on October 23, 2009 at 1:44 PM

lorien1973 on October 23, 2009 at 1:42 PM

Founders specificly talked about it…

Its supposed to mean that they can lay taxes and Levys to Promote the General Welfare… ie… its the rationale that allows them to tax…

But they want it to mean they can do anything they want…

But who knows where the Supremes will go…

Romeo13 on October 23, 2009 at 1:44 PM

There’s never a serious question as to whether what they do is constitutional. Don’t matter if it’s warrant-less wiretapping or health care.

The Dean on October 23, 2009 at 1:44 PM

Yesterday she said that allowing the Bush tax cuts to expire would not amount to a tax increase. “It’s not an increase. It’s eliminating a decrease.”

LibTired on October 23, 2009 at 1:45 PM

“Pelosi,” is never a serious answer.

snaggletoothie on October 23, 2009 at 1:45 PM

These people are seditious. And ugly. And they stink.

RedRedRice on October 23, 2009 at 1:45 PM

Romeo13 on October 23, 2009 at 1:44 PM

I know what it means and the intent. I’m, of course, referring to the unlimited reading of it. Hoyer said it could make people buy a car (just not what brand).

lorien1973 on October 23, 2009 at 1:46 PM

I belive, personally, that the mandate will be challenged within a day.
It is simply not constitutional

AnninCA on October 23, 2009 at 1:41 PM

Ann, you may very well get your wish about the public option if they create a bill with the public option state by state. California, with certainty, will elect a Democrat as governor.

NathanG on October 23, 2009 at 1:46 PM

Until just recently. Has anyone tried to unplug their cable TV? You don’t get that analog signal anymore right?

rollthedice on October 23, 2009 at 1:43 PM

Cable companies went digital, on their own, years ago.

Over the air broadcasts went digital recently, but the courts, wrongly decided that congress has the power to regulate broadcasters years ago.

MarkTheGreat on October 23, 2009 at 1:46 PM

Why would this surprise anyone? She is following in her boss’s footsteps.

ohiobabe on October 23, 2009 at 1:47 PM

But did she offer the CNS guy some cake?

ted c on October 23, 2009 at 1:47 PM

So, I was looking up the text of the “general welfare” clause, and noticed that it’s also know as the “taxing and spending clause” – perfect.

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; but all Duties, Imposts and Excises shall be uniform throughout the United States

I think it’s clear that it calls for the general welfare of the United States, not for serices to individual people. It also calls for Congress to “pay Debts”, but we’ll have to get to that later…

forest on October 23, 2009 at 1:47 PM

Founders specificly talked about it…

Its supposed to mean that they can lay taxes and Levys to Promote the General Welfare… ie… its the rationale that allows them to tax…

But they want it to mean they can do anything they want…

But who knows where the Supremes will go…

Romeo13 on October 23, 2009 at 1:44 PM

The also talked about the interstate commerce clause. It’s purpose was to give the federal govt the power to settle trade conflicts between individual states. It was never meant as an excuse to regulate anything that might possibly, someday, cross a state line.

MarkTheGreat on October 23, 2009 at 1:47 PM

Vote the bum b!tch out!

NathanG on October 23, 2009 at 1:44 PM

Oh, and that message was for the Dems next November after they get their a$$es beaten in the midterms. There’s not a chance in hell that she will be voted out of office, but they would do well to have her “resign” as Speaker of the House. That is if the Dems still have a majority…..

NathanG on October 23, 2009 at 1:48 PM

So the Presidency determines what is a news organization.

The Speaker of the House determines what is a question.

Congress can mandate how U.S. citizens spend their money on themselves and illegal immigrants.

Hmmmm…. I believe I am missing a page or two in my copy of the U.S. Constitution…

ROCnPhilly on October 23, 2009 at 1:48 PM

California, with certainty, will elect a Democrat as governor.

NathanG on October 23, 2009 at 1:46 PM

Even when they elect a Republican they elect a Democrat.

highhopes on October 23, 2009 at 1:48 PM

I got to tell Hoyer that he sucks, in person, a few weeks back. It was awesome. He just smirked and kept walking.

He’s used to that by now I’m sure.

How happy Democrat pols were after election night last year and it’s all turned to ashes.

They are clearly hated by the majority of their constituents and no matter how much they rig elections, they know deep in their hearts how much we despise them.

It’s a small victory, but I do believe that most of these Democrats are getting the message.

NoDonkey on October 23, 2009 at 1:49 PM

Don’t matter if it’s warrant-less wiretapping

The Dean on October 23, 2009 at 1:44 PM

You really do like to beat dead horses, don’t you.

The commander in chief has always had the power to spy on communications to and from this country, even if one or both of the parties involved were US citizens. Had that power from day one.

So your pathetic attempts to make a point are as usual, falling flat.

MarkTheGreat on October 23, 2009 at 1:49 PM

Why we still arguing about abortion? Because the elites won’t put forth a constitutional amendment to outlaw it. That way, they can maintain their power over life and death.

How did the Supreme Court ratify the Kelo and McCain-Feingold decisions? Because the language of the Constitution means nothing to the elites. They make laws in violation of the the Constitution and get the liberals on the court to sanction their collective violations of their oaths and law.

Does anyone really think that those people care whether or not the Constitution allows for mandates? Not a chance.

orlandocajun on October 23, 2009 at 1:49 PM

We’re entering a true new territory.

AnninCA on October 23, 2009 at 1:51 PM

Yesterday she said that allowing the Bush tax cuts to expire would not amount to a tax increase. “It’s not an increase. It’s eliminating a decrease.”

LibTired on October 23, 2009 at 1:45 PM

Brought to you by the same folks who told Gingrich’s Congress that decreasing the rate of increase of entitlements was a cut.

ROCnPhilly on October 23, 2009 at 1:51 PM

I’m pretty d@mned sure, when they took their oaths of office, they had their toes crossed, when they swore to uphold, and defend the constitutions. In their minds, it’s an antiquated, and meaningless piece of paper now. Especially when trying to enact their unconstitutional mandates.

capejasmine on October 23, 2009 at 1:51 PM

Until just recently. Has anyone tried to unplug their cable TV? You don’t get that analog signal anymore right?

rollthedice on October 23, 2009 at 1:43 PM

You’re not forced by the government to buy the service. Watching tv is not a right.

Itchee Dryback on October 23, 2009 at 1:51 PM

Long-Lost Charter Is Printed on Milk Cartons Nationwide: http://optoons.blogspot.com/2009/09/in-recognition-of-constitution-day-long.html

Mervis Winter on October 23, 2009 at 1:51 PM

But did she offer the CNS guy some cake?

ted c on October 23, 2009 at 1:47 PM

ROFL!!!

Heavens no. She offered them some of her organic veggie plates, cause you know….we aren’t supposed to have cake anymore. It’s baaaaaaaaaad!!!

capejasmine on October 23, 2009 at 1:52 PM

You’re not forced by the government to buy the service. Watching tv is not a right.

Itchee Dryback on October 23, 2009 at 1:51 PM

Drinking cola is not a right either. Does that give govt the right to tell Pepsi that they must vitamin fortify every drink that they make?

MarkTheGreat on October 23, 2009 at 1:53 PM

Dangerous, radical sociopath.

marklmail on October 23, 2009 at 1:53 PM

lorien1973 on October 23, 2009 at 1:46 PM

Hey Lorien. That was “I’m smarter than you” corporate lawyer Troll Jimbo03. When he sees this thread, he’ll tell us this is all Constitutional, I’m sure.

kingsjester on October 23, 2009 at 1:53 PM

The general welfare excuse is absurd. If they can force us to pay thousands of dollars for health insurance, there’s no limit on their reach.

Doughboy on October 23, 2009 at 1:54 PM

Get a couple more “wise Latinas” on the Supreme court and Congress will be able to mandate anything it wants.

Beaglemom on October 23, 2009 at 1:55 PM

Hoyer is quite a good ventriloquist, evidently.

Christien on October 23, 2009 at 1:55 PM

Dangerous, radical sociopath.

marklmail on October 23, 2009 at 1:53 PM

Could you please be more specific.

LibTired on October 23, 2009 at 1:55 PM

Don’t you know, that the interstate commerce clause covers everything the govt wants it to cover.

MarkTheGreat on October 23, 2009 at 1:43 PM

Yeah, when the only check on Federal Gov power, is another part of the Fed Gov??? We’ve got problems…

You can thank the Supremes, and cases such as this…

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Where they ruled that a farmer, growing wheat to Feed his OWN chickens, was still somehow engaged in Interstate Commerce…

Or McCain Feingold… when the Constitution specificly says Congress shall make no law limiting Freedom of Speech… but then the Supremes say McCain Feingold, a Law enacted by Congress limiting Freedom of Speech, is Constitutional…

Government is breaking the Covenent between the people, and the Federal Government…

Romeo13 on October 23, 2009 at 1:55 PM

kingsjester on October 23, 2009 at 1:53 PM

What was funny about that, yesterday, was the the only things he could think of were like “force you to speak” or “force you to go to church” – but apparently, nothing else was out of bounds, according to him. That’s why I amended the question today to be only related to commerce, cuz that answer was really left field.

Is that really a world you want to live in, where any normal daily activity you choose to do, could one day be forced upon you by somebody?

And that is somehow acceptable?

lorien1973 on October 23, 2009 at 1:56 PM

The fact that the press does not ask constitutional questions on a daily basis is a travisty in itself. It is about time some starting doing it. Now if we can start seeing in Obama’s primetime pressers.

WashJeff on October 23, 2009 at 1:57 PM

Until just recently. Has anyone tried to unplug their cable TV? You don’t get that analog signal anymore right?

rollthedice on October 23, 2009 at 1:43 PM

I didn’t know TV was now mandatory!

On Thread, I will not cooperate.

GunRunner on October 23, 2009 at 1:57 PM

Hey, Nancy,

Are you serial? Are you serial?

Christien on October 23, 2009 at 1:57 PM

Imagine if a group of private employees spent nearly 10 months working day and night on drafting a business plan, but never bothered to check whether key components of that plan are legal.

They would be fired immediately.

LASue on October 23, 2009 at 1:57 PM

ROGUE
GOVERNMENT

These people do not even understand the laws. Pelosi should be impeached for her lack of understanding if not outright intentionally orchestrating the theft of my liberties.

Skywise on October 23, 2009 at 1:58 PM

We are headed down a very dangerous road for all right thinking, hard working, law abiding citizens. For the second time now, i am not proud of our country.

rjoco1 on October 23, 2009 at 1:58 PM

lorien1973 on October 23, 2009 at 1:56 PM

I was going to ask him what he thought the phrase “life, liberty, and the pursuit of happiness” meant, but I’ve tried to engage with him before, and he’s lost in his own psuedo-intellect.

kingsjester on October 23, 2009 at 1:59 PM

Even when they elect a Republican they elect a Democrat.

highhopes on October 23, 2009 at 1:48 PM

You’re right. Did I dream it, or did Arnold support the Obamacare “bill?”

NathanG on October 23, 2009 at 1:59 PM

I think it’s clear that it calls for the general welfare of the United States, not for serices to individual people. It also calls for Congress to “pay Debts”, but we’ll have to get to that later…

forest on October 23, 2009 at 1:47 PM

Yeah… its clear it says you can Tax… and then spend that tax money to promote the General Welfare…

But thats not the way THEY want to interpret it…

Romeo13 on October 23, 2009 at 1:59 PM

The interstate commerce clause doesn’t apply because Congress doesn’t allow for interstate commerce in health insurance.

Unfortunately, your analysis is incorrect. Congress has the power to regulate interstate commerce, including the power to forbid it, is with insurance. But if, for example, Congress was to organize a national market for insurance, as the House bill does through a national insurance exchange, Congress would likely be within its authority to regulate interstate commerce.

The “general welfare” clause has never applied to individual mandates, which is why neither Leahy or Pelosi will invoke it publicly. If they trot that out in front of the Supreme Court, they’ll essentially be arguing that the federal government has the authority to impose any kind of mandates at any time on anyone in the country, which makes the limitations of power in the Constitution meaningless — and by extension, makes the Supreme Court meaningless as well. Good luck getting them to buy into that policy.

The General Welfare clause is not jurisdictional; Congress cannot decide to reguate something merely because it promotes the General Welfare. Congressional legislation needs a jurisdictional hook, like the Commerce Clause to apply.

The General Welfare Clause instead refers to what Congress may spend money on. Congress could pass a tax, and create a National Health Care Administration, and provide healthcare to people–the spending would be for the “General Welfare,” and would almost certainly be upheld as constitutional. But the jurisdiction of the hypothetical National Health Care Administration would have to derive through the interstate Commerce Clause. Its the difference between allocating funds to an office and actual regulation.

This is my understanding of how Congressional authority is allocated, and should not be taken as legal advice.

Revenant on October 23, 2009 at 1:59 PM

In normal times, such a statement by Pelosi would have been enough to get her immediately ejected from the Speaker’s position. But that was back in the United States. In the new American Socialist State that Pelosi represents, not so much …

For anyone who still doubts the treasonous nature of the Washington junta and their ineligible, moron Precedent, this should be more than enough to put your doubts to rest. A Speaker of the House who publicly expresses disdain for Constitutional limitations, and who is too stupid to even have any response prepared for a question that has been posed at Tea Parties and Town Halls (which the traitor, Pelosi, took quite a bit of interest in) over and over. Yep … it’s that bad.

progressoverpeace on October 23, 2009 at 2:01 PM

So when are we going to start seeing some of our “leaders” question the legitimacy of all of this nonsense!!! Please SOMEONE tell me there is hope for us to avoid this clusterfark b-4 it’s all TOO late!!!!!
I mean seriously aren’t our federal reps supposed to understand the very basis of the constitution? It is so fundamental to our republic!!!
Ahhhhhhhhhhh, I’m losing my mind over this stuff.

Tom66 on October 23, 2009 at 2:01 PM

1776: “life, liberty, and the pursuit of happiness”

2009: “Where my free stuff at?”

portlandon on October 23, 2009 at 2:01 PM

When Pehorsee speaks…the donkeys loose.

hawkman on October 23, 2009 at 2:02 PM

Obama money? Where my Obama money?

txsurveyor on October 23, 2009 at 2:03 PM

This is essentially a tax for being alive. You’re alive and a US citizen? You now officially owe the government money. Your body is now a commodity of the federal govenrment. You have no choice. An individual mandate goes ten times farther than a public option. The public option will creep in slowly, taking over and destroying private business as it goes. An individual mandate takes away all choice in one swoop. Perhaps republicans should start calling the individual mandate something like ” the living tax”. Maybe then people will wake up and see how this isn’t even in the realm of constitutionality.

walnut on October 23, 2009 at 2:03 PM

If they can force us to pay thousands of dollars for health insurance, there’s no limit on their reach.

Doughboy on October 23, 2009 at 1:54 PM

You make it sound as if that wasn’t there goal from the start.

MarkTheGreat on October 23, 2009 at 2:03 PM

Maybe I’m missing something, but the individual mandate is structured as a tax penalty if you don’t have health insurance.

Since Congress has the power to tax and give various tax penalties and subsidies based on behavior, then it has the power to apply the mandate as a tax penalty.

It would likely be unconstitutional under current doctrine* only if the mandate was not reasonably related to the costs or programs of the government. But since the government is and will be in the health care business, the government can show that the penalty helps defray the cost of other spending, and is thus warranted.

*I wish this weren’t current law, but it most likely is. Either the legal power structure needs a radical shift in thinking that reduces their own power under the Constitution (fat chance) or we need an amendment to the Constitution. Sorry to be the bearer of bad news.

Nessuno on October 23, 2009 at 2:03 PM

This is my understanding of how Congressional authority is allocated, and should not be taken as legal advice.

Revenant on October 23, 2009 at 1:59 PM

Pretty sad when our society had degraded to the point where this type of disclaimer is needed…

Luckily… I am not a Lawyer, so I can talk all the shinola I want… LOL…

Allthough… I did sleep with a Lawyer at a Holiday Inn once…

Romeo13 on October 23, 2009 at 2:04 PM

Asking the same question twice in a row is a standard delay tactic. She has no answer to the truth.

jbh45 on October 23, 2009 at 2:04 PM

When confronted with an uncomfortable question, a liar will respond with another question.

Sarjex on October 23, 2009 at 2:04 PM

Yeah, when the only check on Federal Gov power, is another part of the Fed Gov??? We’ve got problems…

Romeo13 on October 23, 2009 at 1:55 PM

Another bad consequence of making the Senate an elected position, rather than have them appointed by state legislatures.

MarkTheGreat on October 23, 2009 at 2:05 PM

This is essentially a tax for being alive. You’re alive and a US citizen? You now officially owe the government money

walnut on October 23, 2009 at 2:03 PM

Cap and Trade? Taxing the very Air we breath?

This Government is out of control….

Romeo13 on October 23, 2009 at 2:05 PM

wait…what about the HOPEYCHANGE thing…doesn’t that trump that silly old Constitution?????

SDarchitect on October 23, 2009 at 2:06 PM

“Thomas Jefferson explained in a letter to Albert Gallatin, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

“[Congressional jurisdiction of power] is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.” – James Madison, Federalist 14

“The powers delegated by the proposed Constitution to the federal government are few and defined . . . to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” – James Madison, Federalist 45

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” – James Madison, 1792

“The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient,’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed” – Thomas Jefferson, 1791

“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” – Thomas Jefferson, 1798

“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.” – Alexander Hamilton, Federalist 83

“Hamilton uncategorically states that all congressional powers are enumerated and that the very existence of these enumerations alone makes any belief that Congress has full and general legislative power to act as it desires nonsensical. If such broad congressional power had been the original intent, the constitutionally specified powers would have been worthless. In other words, why even enumerate any powers at all if the General Welfare clause could trump them?”

Itchee Dryback on October 23, 2009 at 2:06 PM

Madison on the “General Welfare” of America: His Consistent Constitutional Vision

Leonard R. Sorenson

Lanham, Md.: Rowman & Littlefield, 1995, 172 pp.

Article I, section 8 of the Constitution confers upon Congress certain enumerated powers and a potentially more sweeping authority to provide for the general welfare, a goal also set forth in the Preamble. For proponents of a limited central government, the General Welfare Clause has been a source of great mischief. Interpreted elastically by constitutionalists of the “living document” persuasion, the Clause has helped serve up a gourmand’s feast of government programs, regulations, and intrusions that would have been unimaginable to the Framers.

Forty-three years ago, William W. Crosskey of the University of Chicago attempted to set the record straight–-to uncover the original meaning of the Constitution and shut down the revisionists who had robbed the document of its stability and permanence. Alas, Crosskey’s tome, Politics and the Constitution in the History of the United States, published in two volumes in 1953 with a third volume issued posthumously in 1980, only muddied the waters. Worse still, Crosskey managed to tarnish the image of James Madison, until then revered as a paladin in the struggle against encroaching government.

Leonard R. Sorenson, a professor of politics at Assumption College in Massachusetts, has undertaken to rescue us from our rescuer. According to Crosskey, Madison was duplicitous: Publicly, Madison proclaimed that the General Welfare Clause is merely a synonym for the enumerated powers considered collectively, not an independent source of power. But privately, Madison believed that the General Welfare Clause delegates to the Congress plenary legislative power; that the enumeration of specific powers served simply to allocate and assign governmental functions, establish certain procedural limitations, and illustrate some of the powers deemed to be necessary and proper. This alleged difference between Madison’s public and private persona is at the root of the so-called Madisonian contradiction.

Sorenson’s thesis, based primarily on Federalist No. 41, is that Madison regarded the enumeration as defining the objects entailed within the general welfare and the other general clauses that make up the Preamble (i.e., justice, domestic tranquility, common defense, and liberty). But those objects are the broad ends or purposes of the Constitution, not just means or powers. Therefore, states Sorenson, Madison understood the general terms of the Preamble to enlarge the dominion of government beyond the enumeration itself, although not to confer plenary power. Madison’s public position, ascribed to him by Crosskey, was that substantive powers are defined by specifying their number, kind, and application. On the contrary, Sorenson’s explanation is that (1) Madison perceived the Preamble of the Constitution as prescribing a limited number of limited ends; (2) the enumeration defines those ends more precisely; (3) the general welfare and other clauses that make up the Preamble vest particular powers beyond the enumeration, but only to accomplish the limited ends; and (4) the particular powers thus vested can be identified only through an examination of the enumerated powers themselves, in their relation to the authorized ends.

If that sounds recursive, it is intended to be. Sorenson maintains that the general ends or objects of the Constitution, as specified in the Preamble, define the purposes of the enumerated powers qua powers; but the enumerated powers, in their end-defining dimension, provide more specific meaning to the general purposes. Sorenson concludes that the purpose of the enumeration is to define the limited number of objects or purposes that fall within the idea of the general terms. Thus, a proposed new power must promote an object already authorized; that is, the new power must be derived from a general term, which means that it must also have an immediate and appropriate relation to an already enumerated power.

MORE

Akzed on October 23, 2009 at 2:06 PM

Sorry, but you’re way off here on your Constitutional analysis. You are correct about the “general welfare” clause of the Preamble. Courts have long held that the Preamble is simply explanatory of what follows in the Constitution and does not create any powers or have any real legal effect.

However, you are way, way off about the interstate commerce clause. Something does not have to actually BE interstate commerce in order be within the jurisdiction of Congress. It is enough that it affects interstate commerce. The courts have taken this to a ridiculous extreme, most notably in Wickard v. Filburn, a New Deal era case in which the Supreme Court ruled that the Agricultural Adjustment Act was constitutional was permitted the federal government to fine a farmer for growing a small quantity of wheat FOR HIS OWN PERSONAL CONSUMPTION. The farmer argued, quite logically, that there was no interstate commerce because the wheat went from his fields to his kitchen table, not across state lines. But the Court reasoned that if he had obeyed the AAA mandate and not grown the wheat for himself, he would have had to purchase wheat from his own consumption. Thus, there was an “effect” on interstate commerce.

I think Wickard was wrongly decided, but it is as well as established as a constitutional precedent as any case I can think of. And as applied to healthcare, I think there’s little doubt that an insurance mandate has an effect on interstate commerce in the Wickard sense.

I wish it were otherwise, but the Constitutional argument isn’t going anywhere.

Anonymous Finch on October 23, 2009 at 2:07 PM

I’m toying with the idea, because I’m hazy on specifics and much depends upon the final law, but civil disobedience is going to be the way to go here.

Don’t buy the insurance, and don’t pay the fine. We may need to establish a insurance program of our own to make it work–a mutual aid association that doesn’t qualify by the Federal rules, but that allows people to pay for healtcare–and if that is struck down, then we know we don’t have the right of free association either.

Hold the line.

Horatius on October 23, 2009 at 2:07 PM

I fear that, if one expects the courts to keep this under control, it is a weak reed to depend on. I believe that Pres. Bush expected the Supreme Court to take the heat when he (mistakenly IMHO) signed the McCain-Fiengold limitations on Free Speech. Look how well that turned out… This whole Health Care bill needs to be spiked long before it gets to the courts. We now live in times where nothing is predictable and no precedence holds steady.

I know that there are good conservative-oriented health care reform ideas/bills out there, but there is a very poor effort in getting those in front of the public. I’d love to be able to point to one good consolidated bill to face off with in the court of public opinion. (Can’t generally fight something with nothing…) Where is it?

I am one who swore and oath to protect and defend the constitution, but with this crowd, I am at a loss. This all is unlikely to end well.

rshtew on October 23, 2009 at 2:08 PM

When you have bi-partisan support for things like CFR , and TARP, how can anybody think the pesky Constitution is even a serious consideration .

borntoraisehogs on October 23, 2009 at 2:08 PM

Yeah… its clear it says you can Tax… and then spend that tax money to promote the General Welfare…

Romeo13 on October 23, 2009 at 1:59 PM

It says that the reason why congress is given the power to tax is in order to promote the general interest.

It does not say that the govt can tax anything and spend on anything, provided they claim that what they are doing is in the general interest.

MarkTheGreat on October 23, 2009 at 2:08 PM

Another bad consequence of making the Senate an elected position, rather than have them appointed by state legislatures.

MarkTheGreat on October 23, 2009 at 2:05 PM

I wonder if this was still the case today, would state governments be instructing their senators to NOT place a new medicare burden on the state. A burden the states can ill afford.

WashJeff on October 23, 2009 at 2:08 PM

Stick to crying about the ’70s, Nancy.

Christien on October 23, 2009 at 2:08 PM

I like the line-up of sub-headlines right now. Reading up the column…….

“Transparency.”
“Power.”
“Integrity.”
“Are you Serious.”

If this isn’t the current administration in a nutshell, I don’t know what is.

highhopes on October 23, 2009 at 2:08 PM

Pelosi’s answer alone should be justification for a recall. No room for communists in Congress.

darwin on October 23, 2009 at 2:10 PM

what a moron.

Libs think the constitution only talks about their issues.

joeindc44 on October 23, 2009 at 2:10 PM

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