Hatch isn’t kidding: Constitutionality of mandates a big problem
posted at 3:35 pm on November 2, 2009 by Ed Morrissey
Patrick Leahy and Nancy Pelosi may pretend that no one questions the authority of Congress to impose a federal mandate to buy health insurance, but one of their colleagues on Capitol Hill certainly does. CNS News interviewed Senator Orrin Hatch, a member of Leahy’s Judiciary Committee, who says that the Constitution never gave Congress that kind of power. In fact, Hatch says that the interpretation of Leahy and Pelosi would create a despotic Congress that could force Americans to do anything:
Jeffrey: One of our reporters at CNSNews.com, Matt Cover, asked House Majority Leader Steny Hoyer: Where in the Constitution is there language that authorizes the Congress to order Americans to buy health insurance? And Congressman Hoyer said it’s in the phrase “general welfare”–which occurs at the beginning of Article I, Section 8, before the enumerated powers of Congress. What do you think of Congressman Hoyer’s constitutional argument?
Hatch: Well, keep in mind the General Welfare Clause hasn’t been used for years, except through the Commerce Clause–Article I, Section 8. And frankly the Commerce Clause affects, quote, “activities,” unquote. And, you know, the government telling you you have to buy health insurance, mandating that you have to buy health insurance, is not an activity. I mean, that’s telling you you got to do something you don’t want to do.
Jeffrey: And you’re not doing. If you’re sitting at home in your living room in the state of not owning health insurance, you’re not engaged in any kind of commercial activity. You’re not trading with a foreign nation–
Hatch: There’s no way. That’s right.
Jeffrey: –You’re not trading with an Indian tribe. You’re not trading across state lines.
Hatch: Well, let’s put it this way: If that is held constitutional–for them to be able to tell us we have to purchase health insurance–then there is literally nothing that the federal government can’t force us to do. Nothing. Now, whether or not the states can is another issue. The states may be able to. But since that government is closer to the people, those state representatives know that their very political lives depend on not doing things like that to the people.
That may be true in most states, but not in Massachusetts. The Bay State has conducted a years-long experiment in ObamaCare, with depressingly bad results. Paul Hsieh analyzes the impact of the mandate for Pajamas Media, both pragmatically and philosophically as an individual rights argument, and concludes that it’s a loser either way:
Under any system of mandatory insurance, the government must necessarily specify what constitutes an “acceptable” insurance plan. Hence, this creates a giant magnet for special interest groups seeking to have their pet benefits included in the required package.
Massachusetts residents are thus required to purchase benefits they may neither need nor want, such as in vitro fertilization, chiropractor services, and autism treatment — raising insurance costs for everyone to reward a few with sufficient political “pull.” In aggregate, such mandated benefits have increased the costs of health insurance in Massachusetts by up to 50%.
Since 2006, providers have successfully lobbied to include 16 new benefits in the mandatory package (including lay midwives, orthotics, and drug-abuse treatment), and the state legislature is considering 70 more. In the past three years, insurance premiums in Massachusetts have increased by 8-10% each year, nearly twice the national average.
Mandatory insurance thus violates the individual’s right to spend his own money according to his judgment for his benefit. Instead, he [must] choose from a limited set of insurance plans on terms set by lobbyists and bureaucrats, rather than based on a rational assessment of his needs.
In the ObamaCare proposals, the enforcer for these lobbyists and bureaucrats will be that bastion of medical insight … the IRS.
Massachusetts is hardly alone in this effect, either. Maine had both a public option and a raft of mandates on both individuals and insurers. The result? Rates tripled, and the public option — DirigoChoice — quickly went under. In fact, there is now a two-year waiting list for enrollees.
For those who missed my more extensive posts on the constitutionality of the federal mandate, see here and here. Even the CBO declared the idea “unprecedented” in 1993. Leahy and Pelosi will pretend that the flaw in their plans doesn’t exist, but only because they have no actual argument for allowing Congress to have the very kind of dictatorial power that the Constitution was explicitly written to prevent. It’s not just bad for liberty, it’s bad all the way around, as the experiences in Massachusetts and Maine demonstrate clearly.