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.