Are the Health Care Bills Unconstitutional?

Some conservatives are trying to do to Obama Care what liberals have done with great success over the last century: when you can't win at the polls or on the floor of Congress, try to get what you want from the Courts. It is tempting, as a last ditch effort to stop these appalling pieces of legislation. But it is probably futile as a practical matter, and it's bad politics either way.

Senator Orrin Hatch, Professor J. Kenneth Blackwell, and legal expert Kenneth A. Klukowski make the case in the Wall Street Journal.

President Obama's health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional…

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate.

To evaluate this argument, we have to back to constitutional basics. The Constitution of the United States creates a limited government. The powers of the three branches of the Federal Government and of the states are circumscribed by that written document. Consider Section 1 of Article 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The two highlighted words make sense only as a scrupulous reminder that the powers of Congress are subject to carefully defined limits. But what are those limits?

There are two basic answers to this question. One is referred to as strict construction. Here "construction" means to construe or interpret the document. According to this doctrine, the government has only the powers that are specifically mentioned in the Constitution or that can be logically inferred from those powers. This is the doctrine that the authors above are relying on.

The second approach is less frequently named but may be called broad construction. It amounts to this: the Government lacks only such powers as the Constitutional specifically prohibits. For example, Congress cannot establish a national church. But apart from those prohibitions, it can do whatever it pleases.

The first doctrine has everything to recommend it except reality and common sense. It has always been, since the founding of the Republic, a doctrine of losers. Those who do not control Congress or the Presidency love it. But as soon as those same persons get control of the same, they suddenly discover the virtues of the second doctrine.

Case in point: Thomas Jefferson was a strict constructionist so long as the Federalists controlled the government. But then he became President and found himself in the position to purchase the vast Louisiana territory, something no where authorized in the founding document. He bought the land.

Largely because the party in power always prefers the second doctrine, that doctrine has always been the governing one. Where in the Constitution is the space program authorized, or the creation of an Air Force for that matter? This has been settled as far as Constitutional Law is concerned since McCulloch v. Maryland in 1819. Congress can pretty much do whatever the Constitution does not strictly forbid.

Requiring individuals to purchase health insurance is indeed a radical step, but just because it is new doesn't mean it is unconstitutional. I cannot see that it violates any constitutional prohibition.

On the other hand, there are institutional limitations on the powers of government. On this point, the authors may have something.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

The prerogative of the states is clearly protected under the Constitution. Congress can get them to do what it wants only by bribing them with federal funds. It cannot order them to do anything. If these bills transgress that limitation, then they transgress the Constitution. But I am not sure that that would badly damaged the health reform legislation.

If these bills are to be defeated or repealed, it will have to be the old fashioned way. Republicans will have to win votes, and move their own bills through Congress.

Comments

[William]

I'm not a lawyer, nor do I play one on TV, but I think that the Senate and House bills will be difficult, if not impossible, to reconcile without Constitutional challenges. Even a broad construction of Congress' powers does not close the argument that they do NOT have to power to mandate an individual to purchase insurance. There are a number of additional arguments including one I find particularly interesting: the Reid Bill runs afoul of the constitutional guarantee that all regulated industries have to a reasonable, risk-adjusted, rate of return on their invested capital. http://online.wsj.com/article/SB10001424052748704304504574610040924143158.html

Regardless of the ultimate determination of Constitutionality, I believe that the underlying questions OF its Constitutionality will make it extremely difficult to implement this legislation, even if it does eventually get reconciled and passed.

[bh]

Uhhh.

you might want to go back and read the 10th amendment. Your argument against Construction is really bad. As far as a space program or Air Force, those are plainly under national defense.

This article = fail.

[KB]

bh: I have read the 10th Amendment; it goes like this: "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." Unfortunately, it does not tell what powers are not delegated to the United States by the Constitution. For that reason, it has never been judicially enforceable.

Meanwhile, you had better read Article 1, Section 8. Congress is given no general "power of national defense," as you seem to think. It is explicit granted specific powers such as the power to raise armies and establish a navy. To get further than that you have to rely on the doctrines of implied powers and resulting powers, read, as the Court has always done, in light of the necessary and proper clause. The general effect of this is to give Congress whatever powers can be conceivably related to national defense, which is almost anything.

You yourself illustrate this. Is the space program really related to the explicit war powers? Only by an interpretation so broad as to be virtually meaningless. There are no enemies on the moon. By a reasoning that broad, one could argue that mandatory health insurance is constitutional because only a healthy nation can defend itself.

William: to require all citizens to purchase health insurance differs from many similar regulations in so far as it is not a condition for engaging in any kind of commerce. In that respect it is novel as far as I know. I am not a lawyer either. But for the Court to strike it down on that grounds would be very unusual.

To return to the example of Jefferson: it would have been a terrible mistake for the Court to strike down the Louisiana purchase even it concluded that such an exercise of federal power was not reasonably related to any explicit power. It is too much to demand of the founders that they should foresee all the explicit powers that would be necessary centuries in advance. If the Courts did do such a thing, and stuck too it, it might well lead to regular amending of the founding document or, equally likely, to a crippled national government. Either would have defeated the purposes of the Constitutional Convention.

Again, I think the health care bills are absurd pieces of legislation. But bad politics has to be answered by better politics, not by judicial fiat.

[George Mason]

KB; Hatch, et.al. did not go so far as to investigate the provisions of the Healthcare bill as an illegal taking. Not only as regards the requirements for individual citizens but specifically as regards healthcare providers and facilities. Perhaps Harry Reid will invoke the "Kelo" decision and proclaim it eminent domain.

[KB]

Thanks DC: I had already decided to eliminate them as unresponsive.

[rob]

Ohio Legislators Look to Nullify National Health Care

http://sovereign.ohiofreedom.com/wordpress/?p=873

Would any patriotic SD legislators introduce similar legislation?

[bywhatright]

Reid health care proposal unconstitutional at any speed ~Congress has the power to tax income — not to limit it.
This is no longer about health care; Congress has no business limiting income by ordering private property to be given away to someone else.
Under Sen. Harry Reid’s proposed legislation, health insurance companies offering plans for large groups would have to spend on medical costs at least 85 percent of every dollar received in premiums (80 percent for small group and individual plans).
Income exceeding 15 percent of premiums received must be forfeited. How? Companies and stockholders that didn’t spend enough of their gross income from premiums would have to give their money away as “rebates” to their customers, essentially a massive socialist collective. Profit, overhead and executive salaries would be limited to 15 percent by the federal government. The federal government would demand reports to ensure this private property is given away to the collective.
According to this communist-like “central planning” proposal, only 15 percent of every dollar of private income received in premiums may be kept. But this money is private property. It is earned by and belongs to the business enterprise and its stockholders. It isn’t play money for the Congress to dole out like an Orwellian Big Brother.
The right to possess and enjoy income is an incident of ownership; a right held by the health insurance business enterprise and its owners, the stockholders. This property is the fruit of an inalienable and naturally endowed right of liberty, a constitutionally protected right that does not find its source in the central government.
This attempt to seize profits and income — which become upon receipt the vested property of a business enterprise and its stockholders — cannot stand. It unconstitutionally seeks to sequester privately owned property for subsequently imposed transfers to those who have no ownership rights in the same. According to "Father of the Constitution" James Madison: "Money cannot be applied to the General Welfare, otherwise than by an application of it to some particular measure conducive to the General Welfare. Whenever, therefore, money has been raised by the General Authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. "

Under our Constitution the central government can tax income, but it has no power to limit income by ordering private property transferred to another person. Profit is a consequence of our liberty secured by the Constitution. Profit is the wages of the risk-taker.
If we allow this seizure of seize profits and income to occur, before you know it the leftist central committee will decide they can limit everyone’s income. Sound farfetched? I think not. Unlike the Obama administration’s pay czar, who only limits executive pay in taxpayer bailed out companies, the AP reported on Oct. 22 that the Federal Reserve for the first time would police bank pay policies even if the banks did not receive bailout funds. In fact, the Federal Reserve has already advised executives of the top 28 firms to begin reviewing their compensation packages with the objective of having their structures in alignment with the Federal Reserve “guidance” by Feb. 1, 2010.
Concededly, Congress has power to regulate interstate commerce and even tax the income generated there from; thus lessening profits and income, yet the income itself, when made and received, is company and stockholder property. And, like other property, it cannot be taken at the whim of Congress or be ordered transferred to others.
According to the World Book Encyclopedia, 1947 edition, one of the chief characteristics of former fascist governments is: “They began to limit profit, impose capital levies, and regulate business in great detail.”
As Judge Napolitano of Fox News recently stated, the government is embarking down a slippery slope and if this is not challenged and we supinely accept it out of fear, then we are a nation of sheep.
I agree.

[William]

Well said bywhatright!