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realclearworld

Congress Does Not Have the Power to Mandate Health Care

Climate Bill

Many times you hear El Presidente and the Congress saying that their Obamacare requirement that everyone have health insurance or pay a tax is like having auto insurance. Poor analogy Mcfly.  Auto insurance requirements are regulated by the States.  While the states may have the power to do this,  not so fast when it comes to the federal government.

Congress' powers are limited.   Good article in the WSJ on how the new health care reform out there is more likely than not unconstitutional. Here's an excerpt:

The elephant in the room is the Constitution. As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: "[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects." Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution.

These are mostly found in Article I, Section 8, which among other things gives Congress the power to tax, borrow and spend money, raise and support armies, declare war, establish post offices and regulate commerce. It is the authority to regulate foreign and interstate commerce that—in one way or another—supports most of the elaborate federal regulatory system. If the federal government has any right to reform, revise or remake the American health-care system, it must be found in this all-important provision. This is especially true of any mandate that every American obtain health-care insurance or face a penalty.

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such "activities, taken in the aggregate, substantially affect interstate commerce."

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not "regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity." Of course, a health-care mandate would not regulate any "activity," such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Health-care backers understand this and—like Lewis Carroll's Red Queen insisting that some hills are valleys—have framed the mandate as a "tax" rather than a regulation. Under Sen. Max Baucus's (D., Mont.) most recent plan, people who do not maintain health insurance for themselves and their families would be forced to pay an "excise tax" of up to $1,500 per year—roughly comparable to the cost of insurance coverage under the new plan.

But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a "tax" that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by "taxing" anyone who doesn't follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.

Read the whole article here.

12 comments to Congress Does Not Have the Power to Mandate Health Care

  • cubabuzz

    Interesting article, but I see that it ignores the "general Welfare" preamble that is increasingly used to ram legislation through. In that sense, I think the article completely misses the point. Maybe I am wrong, that's just how I see it.

    The blog article I link to below traces the development of the problem, and argues that a new constitutional amendment might be required to get the meaning of Art 1 Sec 8 back to the more limited powers James Madison intended. It also observes that the meaning of the word welfare itself has evolved in meaning since the time the constitution was written, and that also muddies the waters.

    http://monroerising.com/2009/09/04/mangled-general-welfare-interpretation-imperils-constitutional-governance/

    Fast-forward to 1936 when the Supreme Court in an FDR-driven opinion (US vs Butler) (1936) held that the “general welfare clause granted Congress power it might not derive anywhere else [in the Constitution], but limited the power to spending for matters affecting only the national welfare.” It further held that the “general welfare clause confers a power separate and distinct from those 17 powers later enumerated and is not restricted in meaning by the grant of them…” Thus, by legal fiat the number of enumerated powers increased from 17 to 18.

    Later, in Helvering vs Davis (1937), the court rendered a more expansive interpretation by conferring upon Congress power to impose taxes and to spend money for the general welfare subject almost exclusively to its own discretion.

    Since then, the more expansive Hamiltonian interpretation which incorporates the welfare clause as an enumerated power has shaped legislative and Supreme Court thinking. (However, here it is worth noting that, even to Hamilton, pork barrel projects for specific localities very clearly exceeded congressional authority. To wit, “the object to which an appropriation of money is to be made [must] be general and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.”) So, if nothing else, HR 450 would at least halt the self-serving and costly epidemic of pork barrel spending.

    Serving to further muddy the waters, the changing meaning of the word “welfare” itself underscores the conundrum. For instance, in 1828, Webster’s dictionary links welfare to protection (from unusual evil or calamity) and security (peace and prosperity). In stark contrast to this earlier definition, however, the current definition is as follows: “aid in the form of money or necessities for those in need; an agency or program through which such aid is distributed.” Mindful of the striking contrast and the impact of that contrast to governance, Noah Webster himself posited that “in the lapse of two or three centuries, changes have taken place which…obscure the sense of the original language; whenever words are understood in a sense different from that which they had when introduced…mistakes may be very injurious.”

    Theodore Sky, Catholic University School of Law, notes that the expansive interpretation of the enumerated powers has led to an essentially “unbounded modern welfare state.” And that’s clearly where we now find ourselves as a nation.

  • Lazaro

    It is a poor analogy in another way too. States mandate that you have liability insurance - insurance against injuring someone else or damaging their property; they do not mandate that you carry collision insurance or personal injury insurance.

    Just another example of how jejune this administration is.

  • Lazaro, to the contrary, here in Florida it is state law that you carry personal injury protection for yourself; not others. Hence why we need to have uninsured motorist coverage.

    Cubabuzz, the preamble is just that; it's not an enumerated power. Congress only has power under the commerce clause; taxation clause; various amendments; and others set forth in Article I. That's it.

  • ivandurakov

    The Federalist papers make it clear that in the eyes of the authors, "general welfare" was to be pursued within the bounds of the enumerated powers, not to be an enumerated power unto itself, later SCOTUS misramblings notwithstanding. Its interpretation didn't "evolve" but rather "it was evolved" by those with a vested interest in totally bypassing the limits of those enumerated powers and exploiting the ambiguity of the term when taken out of the wider constitutional context.

    But when was the last time mere lack of constitutionality has slowed down this federal government, particularly the current regime, from pursuing their petty aims?

  • cubabuzz

    Cigar Mike, the blog post I linked to argues that the preamble is now interpreted as one of the enumerated rights in its own 'right', since the time of US vs Butler. So you disagree with this interpretation of the ruling? I'm not a lawyer and I believe you have legal training, so I'd be interested to hear what you have to say. Is the blog misquoting the ruling?

    --- [excerpt follows] ---

    US vs Butler (1936) held that the “general welfare clause granted Congress power it might not derive anywhere else [in the Constitution], but limited the power to spending for matters affecting only the national welfare.” It further held that the “general welfare clause confers a power separate and distinct from those 17 powers later enumerated and is not restricted in meaning by the grant of them…” Thus, by legal fiat the number of enumerated powers increased from 17 to 18.

    Helvering vs Davis (1937), the court rendered a more expansive interpretation by conferring upon Congress power to impose taxes and to spend money for the general welfare subject almost exclusively to its own discretion.

    Since then, the more expansive Hamiltonian interpretation which incorporates the welfare clause as an enumerated power has shaped legislative and Supreme Court thinking.

  • raylove54

    Under a normal democratic government yes, but the majority of US citizens have voted for a promising bright and articulate new political star to take this country in a new direction, and that new direction spells S-O-C-I-A-L-I-S-M and under it rules change.
    New Rules#1 Obama, not courts, should interpret law
    "The interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him, according to President Obama's newly confirmed regulatory czar, Cass Sunstein."
    Oh Boy, I see Babalunians are going to have a hard time adjusting to the (NWO) nothing that brief stay at a Orientation camp courtesy of FEMA can't fix!

  • Lazaro

    I don't believe I have ever been required to have personal injury protection; I've always bought it anyways. Must vary from state to state.

  • Cubabuzz the congress has power to pass revenue bills for the general welfare. That's a given. But they cannot pass laws requiring healthcare unless it falls under commerrce clause. Nearly all laws fall under commerce clause power. They can regulate employers to have it but not individuals. It would be a stretch otherwise.

  • Lazaro and they require it here in Fla. If you want privilege of driving car. Likewise you want license you must consent to breathalyzer.

  • raylove54

    While you guys debate the 'Law' The property consfications proceed at 'full speed ahead' reminds me of Cuba when my father warned his friends of property consfication. They said "Oh now that isn't going to happen to us!"
    -----------
    Actual letters sent to me posted below:
    -----------
    From Rudy. One bright sunshiny day in May
    the guardian came with the police to meet and gain
    the trust of my mother.

    When my mother told all five of them that her son
    was not home and she did not want to let them in
    because there were too many of them they said
    that is fine and pretended to leave, but instead
    went around the back and broke down her door,
    pulled her off her chair as she had returned to
    sitting at her kitchen table and was cleaning her
    coffee pot.

    They dragged her off her chair by her arm onto the
    floor injuring her shoulder, handcuffed her on the floor
    and hauled her out of her home.

    You can hear for yourself that she was fully competent
    and in complete control of herself though terrified.
    Rudy
    From Rudy. Ray, you have my permissin to put that
    tape and the description of what they are hearing
    anyplace you like.
    --------------------------
    Ray , I live in Florida too, and have just recently gone through this shocking system. My companion of eleven years was taken to court by two greedy nieces who came in from out of town. My friend was taken to court June 11, never to return home again. The locks were changed on his house and he was placed in a grungy "retirment home." It has been a nightmare! A guardian was given control of his medical and his finances.
    Do you know of anything more in Florida I can do? I have already written to the congressmen and senators.
    Darlene

  • La Conchita

    I agree with you. But, ultimately, what is 'constitutional' in this country is always determined by what 5 people say it is.

  • raylove54

    "Ultimately, what is 'constitutional' in this country is always determined by what 5 people say it is." Conchita if they get their way it will be determined by one man, Deja Vu. anyone? Sunstein: Obama, not courts, should interpret law "Beliefs and commitments of nation's leader should supersede judges."
    http://www.wnd.com/index.php?fa=PAGE.view&pageId=110103