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How Is The Health Care Bill Unconstitutional? Let Me Count The Ways

December 23, 2009 By: Phred Category: Uncategorized

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 mandateRead 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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7 Comments to “How Is The Health Care Bill Unconstitutional? Let Me Count The Ways”


  1. Thank you for so eloquently articulating my thoughts about this health care reform issue… The Democrats are either too stupid to under the Constitution or choose to interpret it through their Socialist bias filter in order to perpetuate their Socialist agenda. What scares me is that this time they’ve gone way beyond Socialism and are now at the door of Fascism. I wish I could fire everyone who voted for this bill and replace them with people of integrity.

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  2. Hypocrisy anyone? Faith-based initiatives are unconstitutional but I’ll just bet you won’t hear anything about that.

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  3. you would from me

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  4. Chester Mauceri says:

    We need more people who think like you.

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  5. CONGRESS MIGHT PASS THE HEALTH BILL WITHOUT VOTING ON IT: A STEP CLOSER TO TYRANNY

    There was a time when I wouldn’t believe that members of congress would be so out of touch with the American people that they would have to resort to underhanded tactics to thwart the will of the people.

    Well, Nancy Pelosi, the Speaker of the House of Representatives, is thinking of doing just that. Representative Louise Slaughter (D-NY) came up with what is now known as the “Slaughter Solution” or “Deem and Pass” that will let the House of Representatives deem the Senate Health Bill as passed in the House without any representative voting on it. Once they use this outrageous procedure, the house leadership can then have additional language inserted into the bill that will satisfy those House Democrats who oppose the bill in its original form.

    Meanwhile, in order for Senate Democrats to be able to use the Reconciliation procedure – a procedure that circumvents the 60 votes needed to overcome a filibuster – the House must pass the Senate Bill ‘as is’, with the exact same wording, before changes can be made. However, the Democratic leadership in the House doesn’t have enough votes to do that and one of the biggest reasons is that the Senate Bill has a provision that allows for taxpayer funded abortions.

    I believe that the Slaughter Solution is not only dishonest and smacks of dirty tricks, but I also believe that it is unconstitutional as is most of the legislation that congress has passed in recent years. Article I, Section VII, Clause II of the U.S. Constitution clearly states: “…the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively…” This newly invented “Slaughter Solution” clearly does not allow this type of procedure.

    The Democratic leadership in the Senate has tried to assure the Democratic leadership in the House that if the House simply passes the bill as it is, the Senate will make changes amenable to the House after the fact. Pro-life House members, led by Bart Stupak (D-MI) are balking at this assurance and pointed to the hundreds of House bills that are currently still wallowing in the Senate. He also wants to see the changes in writing as he doesn’t trust his own party’s leaders.

    If the Democratic leaderhip in the Senate imposes the ‘Reconciliation Rule’ to pass this bill, unfortunately for them, that alone will not be enough to get the bill passed. The reconciliation procedure, also known as the ‘Byrd Rule’ named after Senator Robert Byrd, is already extremely controversial. Senator Byrd is on the record in Congress saying his rule was “Never intended” to pass this kind of legislation, so the House leadership appears ready to adopt the Slaughter Solution instead. If the Slaughter Solution is instituted, the House of Representatives will actually pass the almost $875 billion bill without the members of the House actually voting on it. This is outrageous and smacks of something we would expect from the Russian politburo or a marxist distatorship.

    Although the “Slaughter Solution” or the “deem and pass” rule has been used in the past, it has never been used to pass legislation as momentous as the $875 billion health-care bill. It is one of three options that Nancy Pelosi said she is considering for a House vote, but she added that she prefers this method because it would politically protect lawmakers who are reluctant to publicly support the measure. What an outrageous statement, particulalrly in view of constitutional requirements of Article I, Section VII, Clause II previously mentioned in this article.

    There is also a 1998 Supreme Court ruling, CLINTON v. CITY OF NEW YORK (97-1374), that said each house of Congress must approve the exact same text of a bill before it can become law. A self-executing “deem and pass” rule would sidestep that requirement, former federal appellate judge Michael McConnell said in a recent Wall Street Journal op-ed and it would be unconstitutional.

    The American people have overwhelmingly rejected this bill, but the President and the Democrat leaders in both houses of congress seem intent on using misinformation, lies, deceit, bribery and any other questionable and unconstitutional procedure to ram this socialist legislation down the throats of the American people without a public discussion of the merits. Why?

    We are fast approaching a point of no return in America. If our Marxist President and the Democratic-Socialist leadership in congress are successful in passing this Health Bill, they will be emboldened to pass other critical legislation on their agenda to bring a free America to its knees. If the Health Bill is passed, they will quickly move to pass an all-encompassing Amnesty Bill, followed by a massive Cap and Trade Bill, a National biometric ID Card Bill and then the takeover of America will be almost complete. All that will be left is for them to come for our guns.

    Let us remember that at critical points in human history, only a few generations have been given the honor and privlege of defending ‘Freedom’ in its maximum hour of danger.

    In 1776, our founders’ generation were given the honor and privlege of defending ‘Freedom’ in its maximum hour of danger, which resulted in the birth of this great nation that is still a beacon of hope to the freedom loving people of the world.

    The generations of World War I and World War II were also given the honor and privlege of defending ‘Freedom’ in its maximun house of danger.

    Today in America, we again find ourselves in a critical point in history, for ‘Freedom’ once again is in mortal danger, just as it was in 1776 and in WWI and WWII. Our generation is facing a different kind of mortal danger to our “Freedom’ because that danger is not coming from some foreign country, king, dictator or enemy combatants, but it is coming from our own federal government.

    Our Founders told us that “Governments get their just powers from the consent of the governed and whenever the government becomes destructive of these ends, it is not only the people’s Right, but it is their sacred Duty to change the government. “

    In 2010, we are now the generation that has been given the honor and privlege of defending ‘Freedom’ in its maximum hour of danger and this is our time to perform that sacred duty. We must stand up, speak up and be willing to actively resist the growing unconstitutional actions of the our federal government that puts the interests of government leaders and the oligarchy ahead of the interests of the people. By definition, this is tryanny.

    Let us act before it’s too late, not just for ourselves, but for our children and our children’s children. I pray to God that we will be successful, for the free people of the world are depending on us.

    GOD BLESS A FREE AMERICA!!!!!!

    John Wallace
    http://www.TeaPartyRep.com

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  6. The U.S. Government is killin’ us. Can’t the whole population get that this health care reform absolutely will drive up taxes for everybody and even create brand new ones for us all?

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  7. Your work has always been a great source of inspiration for me. I refer your web site to many of my friends as well

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