Wednesday, December 23, 2009

Does Congress have the authority to mandate health care?


Today the Senate will vote on a constitutional point of order raised by Senators Jim Demint (R-SC) and John Ensign (R-NV). From the Washington Examiner:
Ensign said the bill violates individual freedom of choice by requiring people to purchase health insurance or be subjected to fines and penalties.



"Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” Senator DeMint said. "This is not at all like car insurance, you can choose not to drive but Americans will have no choice whether to buy government-approved insurance."
Clearly this is a matter that will be decided in the courts if and when this health care bill is passed.  But it is, I believe, instructive and important that the GOP go on the record now with these constitutional concerns.

In 1994 when the Democratically-controlled congress was pushing for Hilary Clinton's health care plan, the non-partisan Congressional Budget Office issued a statement which included this:
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.
The Heritage Foundation discusses the constitutional problems with the Reid health care bill in today's Morning Bell:
...The individual mandate and other questionable measures in the bill raise serious questions as to whether Obamacare could survive a Constitutional test:



Enumerated Powers: Article I allocates to Congress “[a]ll legislative powers herein granted,” which means that some legislative powers were intended to remain beyond Congress’s reach. The Supreme Court recognized and affirmed this fundamental principle from the earliest days of the republic, as Chief Justice Marshall famously observed: “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service. Democrats have pointed to both the general welfare taxing power and the commerce clause as possible justifications for the mandate, but as a recent Heritage Legal Memorandum details, neither justification withstands scrutiny. (emphasis mine)


5th Amendment: The Fifth Amendment of the U.S. Constitution reads in part: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Sen. Ensign will argue today: “The Democrats’ health reform bill would require an American citizen to devote a portion of income – his or her private property – to health insurance coverage. … But, Mr. President, if a Nevadan does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else, such as rent or a car payment, this new requirement could be a “taking” of private property under the Fifth Amendment.”


Racial Discrimination: On December 10th, the United States Commission on Civil Rights sent a letter to the Senate regarding racially discriminatory provisions in Obama’s health plan. The letter reads: “No matter how well-intentioned, utilizing racial preferences with hope of alleviating health care disparities is inadvisable both as a matter of policy and as a matter of law. … Ensuring that all Americans, regardless of race, have access to quality health care requires both creativity and hard-nosed attention to data. It also requires staying within the requirements of the Constitution. The current race-based provisions of the Senate Health Care bill display none of these qualities.”


Unequal State Treatment: Speaking to Fox News, Sen. Lindsey Graham (R-SC) described Sen. Ben Nelson’s (D-NE) deal to support Obamacare in exchange for a bailout Nebraska’s Medicaid costs as “disappointing, sleazy, unconstitutional.” Graham is not the only one examining Cornhusker Kickback. The Attorneys General of Alabama, Colorado, Michigan, North Dakota, South Carolina, Texas and Washington state are jointly investigating the deal to see if special treatment for only one state in the nation at the expense of the other 49 violates the Constitution.


The leftist majority in the Senate is likely to vote down the DeMint/Ensign constitutional point of order, but the very objection itself will help build a record that courts will look at when determining whether or not Obamacare is unconstitutional. The Senate is not the final arbiter of whether or not the laws it passes are consistent with the United States Constitution. That question was settled over 200 years ago in Marbury v. Madison. Although it is always difficult for the Supreme Court to thwart what is perceived to be the popular will, polling consistently shows that this legislation faces strong popular opposition. If that remains true after enactment, the majority of the Justices who are inclined to preserve the enumerated powers scheme and adhere to the original meaning of the text will have little inclination or incentive to stretch the Constitution to reach so decidedly unpopular and far-reaching a law as this one.
The highlighted quote above was given to us in 1803 by Chief Justice John Marshall in the Supreme Court's written opinion in the case of Marbury v. Madison.  Marshall, the longest serving Chief Justice of the Supreme Court in our nation's history cautioned us:
The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.



Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.


If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.


Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
In direct contradiction of Justice Marshall's admonition, Senator Diane Feinstein (D-CA) assumes that the authority of Congress to mandate matters of health insurance is unlimited.   CNS news reports:
The health care bills in both the House and Senate require that every American purchase a health insurance policy. At the Capitol on Tuesday, CNSNews.com asked Sen. Feinstein: “Where in the Constitution does Congress get the authority for an individual health insurance mandate?”



Feinstein said: “Well, I would assume it would be in the Commerce clause of the Constitution. That’s how Congress legislates all kinds of various programs.”


CNSNews.com followed up by asking Sen. Feinstein whether this broad power had any limits: “If there’s a health insurance mandate, is there a limit to that authority? Is there something that can’t be mandated?”


Feinstein responded: “My own view is that there is not, within health insurance.”
The Congress has unlimited authority?  The statement is repulsive and breathtaking on its face.

When I was growing up in Mississippi, it was not uncommon to hear children at play exclaim something like, "you can't make me.  It's a free country!"  I wonder if kids still say that?  I wonder if future children will even know what that means?

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