Americanly Yours

I have written previously about my opinion of the Democrats’ health care bills.  I have also written about the economic problems which this bill will cause.  I have questioned the need for this bill by dispelling the myth that 47 million Americans do not have health insurance because they cannot afford it.  Additionally, I have written about the declines in quality of health care that are sure to come following the enactment of these plans.

One thing I have not written much about is the legality of passing this type of health care reform.

The Constitution is the supreme law of the land.  No matter how much we all want a new law, regulation, or program, this new law, regulation, or program is illegal if not authorized by the Constitution.  The rule of law is the idea that leaders and government officials must follow the law just as common people must follow the law.  If our leaders violate the Constitution while pursuing reforms. they are violating the rule of law.

Although a majority (or at least a plurality) of Americans have opposed the Democrats’ health care plan in EVERY SINGLE POLL on the issue for over a month now, a bill has passed the House of Representatives and a similar bill will almost certainly pass the Senate this Thursday.  However, the popularity or unpopularity of a law has no bearing on its Constitutionality.

The first problem with this bill is the “insurance mandate.”  If this bill is enacted into law, all Americans who can afford to purchase health insurance but fail to do so are subject to a fine of $750.  Failure to pay this fine will lead to a prison sentence.  One obvious question here is why, if health insurance is so good and vital do people have to be threatened with jail time for not purchasing it? More troubling than this question is the legal basis for imposing such a mandate on Americans.

There is no historical precedent for this type of mandate.  A similar insurance mandate was considered in a 1994 health care bill which prompted CBO analysts to write: “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.”

More importantly though, there is not a Constitutional precedent for an insurance mandate.  Read the entire Constitution as many times as you like: you will find nothing in the document which grants the government the right to force citizens to purchase a privately produced product.  Article I, Section 8 of the US Constitution lists the “enumerated powers” of Congress.  There is absolutely no mention of anything even remotely relating to a) the right of Congress to enact laws regarding health care b) the right of Congress to force Americans to buy a product from a private company under penalty of fine or imprisonment.

Liberals will likely argue that Congress does have the power to enact this type of mandate (and this health care bill as a whole) by citing three clauses within Article 1, Section 8: the “general welfare clause,” the “commerce clause,” and the “necessary and proper clause.”  Here is why they are wrong on all three points.

The “general welfare” clause of the Constitution reads as follows:

“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…”

Liberals see the phrase “general Welfare of the United States” to mean that Congress has the right to provide for the good and welfare of citizens of the United States.  This is an incorrect and dangerous view of the Constitution.  The Constitution was written to create a new federal government by mutual consent of independent States.  Thus, the name United States meant just that–States which were united as partners in a common government.

The meaning of this clause in the Constitution therefore means that Congress has the power to provide for the “general welfare of the States.”  By no means does this clause imply that Congress has the right to provide for the “general welfare of all American citizens.”  Such a power was neither written, nor implied in this clause.

But dont take my word for it.  The “Father of the Constitution,” James Madison agreed with my sentiments when he said:

“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands;they may appoint teachers in every State, county and parish and pay them out of their public treasury;they may take into their own hands the education of children,establishing in like manner schools throughout the Union;they may assume the provision of the poor;they may undertake the regulation of all roads other than post-roads;in short, every thing, from the highest object of state legislation down to the most minute object of police,would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”

The “commerce clause” of the Constitution reads as follows:

“The Congress shall have power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  The interpretation of this clause has been widened greatly over the years, helping nationalists as well as socialists consolidate power on the federal level.  However, even given the wide interpretation of this clause, Congress lacks the power to nationally mandate health care.

I (as well as many others) previously advocated allowing consumers to purchase insurance plans across state lines.  The reasoning here was that allowing a national insurance market to emerge would increase competition and lead to more insurance carriers, lower costs, and better products (as it has done in many other industries).  However, Congress long ago prohibited the slae of insurance plans across state lines.

This measure is one of the primary reasons why health care costs are out of control, making it one of the primary reasons why the system is broken, in turn making it one of the primary reasons why the Democrats are attempting to nationalize health care.

However, this measure is also a major reason why it is unconstitutional for Congress to nationalize health care.  Yes, Congress does have the right to regulate commerce between the states.  However, Congress has no power whatsoever to regulate commerce within an individual state.  By refusing to allow insurance companies to compete across state lines, Congress has lost any legal right it would have to regulate health care.

Thus, Congress has created a sort of legal “catch-22.”

Perhaps the most common excuse that big government proponents use to enact statist policies is the “necessary and proper clause” of the Constitution.  The “necessary and proper clause” reads as follows:

“The Congress shall have power…  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.”

Liberals (and conservatives when it is convenient for them) tend to stop paying attention to this clause after the word “proper” and interpret it to mean that Congress has the power to do as it wishes, as long as the measure is both necessary and proper.  This is not true.  As clearly stated above, Congress can only [legally] pass laws which are necessary and proper to executing the powers listed in Article 1, Section 8 of the Constitution.

But, even if this clause does allow Congress to pass any law that is both “necessary and proper,” the insurance mandate is still an unconstitutional violation of this clause.  For a law to meet the qualifications in the above clause, the law would have to be both “necessary,” and “proper.”

The fact of the matter is that this mandate is not “necessary.”  Many people are uninsured by choice.  They have the means to purchase insurance but for whatever reason choose not to.  I wrote about this more extensively here.  But here are a few quotes:

“A lot of other people are also voluntarily uninsured.  For example, about 9 million people (more than one in five of the uninsured) are eligible for employer insurance and decline to enroll even though the employer share of the premium is usually nominal.”

“The largest increase in the number of uninsured in recent years has occurred among higher-income families.”

“Further, over the past decade, the number of uninsured increased by 54% in households earning between $50,000 and $75,000 and by 130% among households earning $75,000 or more.  By contrast, in households earning less than $50,000 the number of uninsured decreased approximately 3%.”

What the above quotes indicate is that many people who do have the financial ability to purchase health care coverage decline to do so.  These people would prefer to use their money to purchase other items, or to save.  For these people, it is NOT necessary that they have health insurance.

Two further reasons why this bill is unconstitutional are found in the Constitution in Article I, Section 9.

One clause in Section 9 reads as follows:

“No Bill of Attainder or ex post facto Law shall be passed.” A bill of attainder is a law which targets a specific group of people.  Requiring individuals to purchase health insurance under penalty of fine or imprisonment violates this prohibition by directly targeting those who choose not to purchase insurance.

I spoke with Dr. Robert Levy, Chairman of the Cato Institute, and the legal scholar behind the D.C. v. Heller case.  I asked Dr. Levy if the proposed individual mandate constitutes a violation of the Constitutional prohibition on bills of attainder.  His response is below (all emphasis added by me):

“As you correctly note, Article I, sec. 9 of the Constitution forbids the federal government from enacting bills of attainder – broadly defined as legislative acts, civil or criminal, that inflict punishment without a judicial trial.  The most egregious bills of attainder designate by name the parties to be punished.  But the Supreme Court has also invalidated legislation where the names are omitted, yet could be ascertained without great difficulty. See, e.g., United States v. Brown, 381 U.S. 437 (1965) (federal crime for member of Communist party to serve as officer of labor union).

Legislative bodies are supposed to enact general rules, broadly applicable, that grant rights, impose obligations, or prohibit acts.  The judiciary then decides whether specific persons are entitled to a right or bound by an obligation or prohibition.  In carrying out their function, courts have to follow prescribed procedures — e.g., jury trials and rules of evidence — that are not applicable to legislatures. That’s why the Bill of Attainder Clause was included in the Constitution — to prevent legislatures from punishing identifiable persons or groups without giving them an opportunity to defend themselves.

For the Bill of Attainder Clause to be successfully invoked, a court would have to conclude that it was the legislature’s intent to punish rather than to regulate for a legitimate political purpose.  In my view, the prospects for a successful bill of attainder challenge to the insurance mandate are negligible – but only because the Supreme Court is less attentive than you and I to the Constitution.“

Besides the insurance mandate, this bill fails on several other Constitutional grounds.  The 10th Amendment reads as follows: 

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This expressly means that all powers not mentioned in Article 1, Section 8 of the Constitution belong to the states or the people.  Thus, because health care is not mentioned in the Constitution, this power belongs to individual states.

While this provision would allow states to create their own state run health acre plans, it would not allow states to require insurance mandates, nor would it allow them to ban the provision of private health insurance.  According to Article 1, Section 10 of the Constitution, “No State shall… pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.” The prohibition on laws impairing the obligation of contracts means that no state can interfere with the rights of citizens to enter into private contracts with insurance providers (or with any other business).

Finally, as mentioned above Congress has already declared that health insurance is not classified as interstate commerce.  Remember that by denying insurance providers the right to sell insurance across state lines, they have made health care an intrastate issue, rather than an interstate issue.  Congress simply does not have the power to regulate intrastate commerce.

The fact of the matter is that no matter how badly liberals want this bill to pass, it is unconstitutional.  Congress does not have the legal power to enact this law.

I hate to even bring this up, but there is one way that the Democrats could pass a bill of this magnitude legally; they would need to amend the Constitution to grant Congress the right to provide health care.

Illinois Congressman Jesse Jackson, Jr. has proposed such an amendment.  While I would oppose the ratification of this amendment, its ratification would at least lay the legal grounds under which the government could provide health care.  Until such an amendment passes, the federal government’s legislation regarding health care is in direct violation of the Constitution, and as such, should be ignored or nullified by the States.

Americanly Yours,

Phred Barnet

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