For those of you that read my blog on a weekly basis mostly to get your dander up, I will not disappoint you this week. To get right to the point, plain and simple, the newly passed “Obamacare” health care reform legislation is unconstitutional on many levels and Republicans if they have any political principles at all will run this November on a platform promising to repeal the measure in its entirety.
However, they may be saved from this act of unusual courage on their part if state attorneys general have their way. Already, there are lawsuits filed by 14 states against the law. The suits rightly state that, "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage." This argument before any court should be enough to at least invalidate that portion of the law. And if that portion is struck down then the financing mechanism for making the law somewhat viable is removed and the scheme falls flat on its face.
The states have chosen the portion of the new law that will give them the greatest chance of success in the courts. After all, it was deemed necessary at the beginning of the last century to pass an amendment to the Constitution allowing Washington to collect income taxes from Americans. How come an amendment is not required for Washington to order Americans to pay for health insurance?
But, there are also many other constitutional arguments that can be leveled against “Obamacare”. Article 1 Section 8 of the U.S. Constitution enumerates 18 specific powers granted to Congress. Healthcare is not one of them and as a matter of fact the responsibility for regulating the industry has historically fallen to states. States license doctors, hospitals, and have insurance commissions responsible for regulating rates and services. Of course, liberal interpreters of the Constitution will point out that there are two clauses in that same section which support their view that Congress has nearly unlimited powers when it comes to providing for the well-being of Americans.
The first clause is the “General Welfare” clause, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States…” Taken in context, general welfare is not separated by commas from “to pay the debts” and “common defense”. Therefore, the Congress has the power to provide for the general welfare of the United States by maintaining a common defense and paying the debts in the pursuit thereof. The phrase does not give Congress unlimited powers. If it did there would be no need for the 16 enumerated powers that follow in the same section.
The second clause liberal interpreters of the Constitution point to in order for Congress to do whatever it wants to is the “necessary and proper” clause. It reads, “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.” Many have labeled this the elastic clause which is about as accurate a label as the “Patriot Act”. The first part ending with “foregoing powers” obviously relates to the 17 previously mentioned enumerated powers in Section 8. The bone of contention is the phrase, “…all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” What are these other powers? To liberal interpreters it means anything Congress feels should be done for the ‘general welfare”. The real answer is the powers specified to Congress outside of Article 1 Section 8 of the Constitution.
Article 2 dealing with the Executive Branch is a good example. In Section 1 of that article Congress has been given the power, not enumerated in Article 1 Section 8, to determine the time for choosing electors of the Electoral College. Article 2 Section 2 gives Congress power to enact laws dealing with certain appointments of the president. There are several amendments that give Congress power to, “enforce this article by appropriate legislation”. These powers of Congress not found in the article dealing with the legislative branch are “necessary and proper for carrying into execution all other powers vested by this Constitution in the government of the United States…” That was the original meaning of the necessary and proper clause. Furthermore, health care is not specified in any of these other powers, thus it is outside of Congress’s powers under federalism and a clear violation to the Constitution.
The Constitution grants very limited powers to all three branches of government, not just Congress. Those powers are enumerated and delegated in the document. To believe otherwise ignores the actual text and the historical context the document was written in. Why would individuals give unlimited power to a new government when they had just risked all they had to overthrow the unlimited tyrannical powers of another? They wouldn’t. This is why a strict constructionist interpretation is correct and why Obamacare is unconstitutional.
Part 2 will deal with the interstate commerce clause and why it is important to adhere to the Constitution.