Not quite understanding the word mandate

posted at 8:20 am on October 24, 2009 by Ed Morrissey

After writing several posts about the lack of constitutional authority of Congress to force Americans to buy health insurance or face fines and imprisonment, I assumed people understood the nature of the argument.  Kathy Kattenburg’s response to my post yesterday on the topic demonstrates that we need to make this a little more clear.  She links back to another blogger offering a strawman argument that appears to confuse Kathy:

I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:

It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the “Framers” certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the “necessary and proper” clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Well, our argument has never been that Congress cannot pass laws, or that Congress cannot pass laws without some absurdly specific mention in the Constitution.  Quite obviously, Congress has the power to pass laws to carry out its expressly assigned powers.  They’ve been doing that for over 200 years, and no one except anarchists challenge that legitimacy.

The argument here seems to be that since the Constitution doesn’t specifically grant authority to create an Air Force, we conservatives must consider it illegal.  While it’s true that the Constitution gives specific authority to maintain an army and a navy, the Air Force falls specifically within the purview of Article I, Section 8:

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 entirely silly idea that the Air Force is illegal under a strict constructionist concept is laughable on its face.  Of course an Air Force provides for the “common defence and general welfare of the Unites States,” as does the Coast Guard, Homeland Security, the FBI, the CIA, and so on.  The key is that the Constitution explicitly gives Congress that jurisdiction.

The question is whether forcing people to buy health insurance falls within that authority.  That is, after all, what an individual mandate means.  People who do not buy health insurance will get fined thousands of dollars, and could go to prison if they refuse to pay the fines.  Unfortunately, the example offered here as precedent is almost as absurd as the Air Force analogy above.  Medicare is a more controversial program for strict constructionists, but that’s actually beside the point.

I’ll allow for the sake of argument that the government has a several-decades-old precedent for establishing government delivery of medical care, but Medicare and Medicaid are entirely voluntary. No American citizen is forced to accept Medicare or Medicaid, as anyone arguing on behalf of the “47 million uninsured Americans” should know.  Several million of the uninsured are people with eligibility in one of these federal programs who have declined to enter them.

So I’ll ask again: What authority does Congress have to mandate that people buy a product?  What precedent do they have to threaten people with imprisonment if they don’t buy a product merely for existing, as opposed to a prerequisite for accessing public roads as with car insurance?  The reason why Pelosi, Leahy, and Hoyer refuse to answer those questions is because they don’t have an answer to them.

A few brave souls will argue that the “general welfare” clause means that Congress can mandate anything that they see as beneficial, but that misreads the word general — which meant the welfare of the nation as a whole, not a responsibility to make each individual citizen’s life choices for them.  The opposite reading would have made Congress a totalitarian monster, with the executive as its hatchetman, and the founders would have scoffed at such an interpretation.

The Constitution exists to limit the power of government and each branch, reserving most of the power to the states or to the people.  Claiming that Congress has the power to dictate that we must buy into health insurance by claiming that all that is possible must therefore be mandatory is arguing that Congress has a dictatorial, unlimited power over every aspect of our lives.

Update: Jazz Shaw has an excellent rebuttal to the McCulloch v Maryland and “necessary powers” arguments, too.

Update II: See what you can find by following the trackbacks?

And here is the logical fallacy.  The conservatives’ concern here is not that something unmentioned in the Constitution is being put in place; rather, the concern is that the freedom of Americans to choose not to participate is being infringed.  I happen to agree that Congress has the authority to create a health care reform design for the nation (though an argument can be fashioned that it is not interstate commerce, in that health insurance does not cross state lines).  I also happen to think it’s a bad idea to do so.  But that’s not the question.  It is, instead, can Congress mandate participation in that system?

The Constitution doesn’t discuss Medicare, but, having set up the system, Doctors and patients are each free to participate, or not.  Yes, that’s President Obama’s favorite medical center not participating in Medicare.  Such freedom of economic association would be eliminated by the mandate.  This is what the CNS News questioner was getting at, and Ms. Pelosi should have a coherent answer handy next time the topic comes up.  And it will.

Exactly.

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

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Comments

Was there a tax on slaves?

Itchee Dryback on October 25, 2009 at 8:04 PM

Health Care provides for the “ general welfare of the Unites States.” So I guess y’all can zip it now.

Constant Parrhesia on October 25, 2009 at 5:59 PM

So does food, a house, and some “walkin’ around” money.
Whats your point supposed to be?

Itchee Dryback on October 25, 2009 at 8:07 PM

The Ronin Edge on October 25, 2009 at 10:25 PM

Thats what I was thinking.

They are going to pass this in one form or another.
Is our only hope in it not taking effect until 2013 and beyond so it can be repealed?

Itchee Dryback on October 25, 2009 at 10:32 PM

Health Care provides for the “ general welfare of the Unites States.” So I guess y’all can zip it now.

Constant Parrhesia on October 25, 2009 at 5:59 PM

The Tenth Amendment was added to the Bill of Rights before ratification in order to clear up confusion regarding the “Welfare Clause”. Writings from the period support the intent of the founders in this matter.

So… I guess you can zip it now. :D

Seriously, this matter was settled over two hundred years ago, and it’s only the ignorant or the greedy who look to the welfare clause in an attempt to authorize their theft.

Murf76 on October 26, 2009 at 7:58 AM

The Ronin Edge on October 25, 2009 at 10:25 PM

Thats what I was thinking.

They are going to pass this in one form or another.
Is our only hope in it not taking effect until 2013 and beyond so it can be repealed?

Itchee Dryback on October 25, 2009 at 10:32 PM

The primary defense HAS to be taking back the house and the senate for 2010. IF we can’t override/undo/block/tank/pigeonhole the many and various crapsandwiches this congress has rammed down, then we fight on for 2012. If we can’t undo and roll back then, we fight for 2014.
 
Can you see the trend? The point is not whether we take the country back, the point is when. When we take it back, are we going to ever let these moron/liberal/maoist/socialist/nazis get a word in edgewise?
 
FREEDOM!

Blacksmith8 on October 26, 2009 at 9:24 AM

So can they mandate “smart T-stats” that keep up warm in the summer and cold in the winter? Howsabout cameras in our homes, as has already happened in UK “for the children.”

Now that H1N1 has been declared a “national emergency,” maybe vaccines will be mandated, with other healthcare mandates to follow.

Akzed on October 26, 2009 at 9:34 AM

Health Care provides for the “ general welfare of the Unites States.” So I guess y’all can zip it now.
Constant Parrhesia on October 25, 2009 at 5:59 PM

Ed, you fergot to spray for trolls.

Akzed on October 26, 2009 at 9:35 AM

FREEDOM!

Blacksmith8 on October 26, 2009 at 9:24 AM

Agreed..but I fear that if a turn around can not be accomplished in 2010/2012, there will be so many people on various levels of assistance out of necessity, that trying to reverse things will be out of the question. At that point, exposing how we got there or who and what is to blame will simply not be relevant. Once you’re in the water trying to survive because theres a hole in your boat, you don’t really care how the hole got there..you’ll take whatever will help keep you afloat…and most likely be grateful for it and want to keep it around.
Then you get comfortable with it and expecting of it.

Itchee Dryback on October 26, 2009 at 10:14 AM

Who will administer this mandate? How will they inforce the optional monthly fine? IRS/govt will be tapped into your bank account, no? Means testing has to be intrusive. I mean, it has to be that way, right?

Does anyone know about this?

marklmail on October 26, 2009 at 12:35 PM