Why the Health-Care Bills Are Unconstitutional

Why the Health-Care Bills Are Unconstitutional
By Orrin G. Hatch, J. Kenneth Blackwell and Kenneth A. Klukowski

This article appeared in The Wall Street Journal on January 2, 2009.

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. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.

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. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce.

Congress has many times stretched this power to the breaking point, exceeding even the expanded version of the commerce power established by the Supreme Court since the Great Depression. It is one thing, however, for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity. That is not a difference in degree, but instead a difference in kind. It is a line that Congress has never crossed and the courts have never sanctioned.

In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate. By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said it could not do.

Some have argued that Congress may pass any legislation that it believes will serve the "general welfare." Those words appear in Article I of the Constitution, but they do not create a free-floating power for Congress simply to go forth and legislate well. Rather, the general welfare clause identifies the purpose for which Congress may spend money. The individual mandate tells Americans how they must spend the money Congress has not taken from them and has nothing to do with congressional spending.

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.

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.

This violates the letter, the spirit, and the interpretation of our federal-state form of government. Some may have come to consider federalism an archaic annoyance, perhaps an amusing topic for law-school seminars but certainly not a substantive rule for structuring government. But in New York v. United States (1992) and Printz v. United States (1997), the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is, by drafting and by deliberate design, exactly what this legislation would do.

The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.

This hardly exhausts the list of constitutional problems with this legislation, which would take the federal government into uncharted political and legal territory. Analysts, scholars and litigators are just beginning to examine the issues we have raised and other issues that may well lead to future litigation.
America's founders intended the federal government to have limited powers and that the states have an independent sovereign place in our system of government. The Obama/Reid/Pelosi legislation to take control of the American health-care system is the most sweeping and intrusive federal program ever devised. If the federal government can do this, then it can do anything, and the limits on government power that our liberty requires will be more myth than reality.

Ken Blackwell is Senior Fellow, Family Empowerment at the Family Research Council
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Vote: Nov. 2010

Take a look at this and just remember elections: Nov. 2010

U.S. House & Senate have voted themselves $4,700 and $5,300 raises.

1. They voted to not give you a S.S. Cost of living raise in 2010 and 2011.

2.Your Medicaid premiums will go up $285.60 for the 2yrs and you will not get the 3% COLA: $660/yr. Your total 2yrs loss and cost is -$1,600 or -$3,200 for husband and wife.

3. Over 2yrs they each get $10,000 .

4. Do you feel SCREWED?

5. Will they have your cost of drugs, doctor fees, local taxes, food, etc., increase? NO WAY. They have a raise and better benefits. Why care about you? You never did anything about it in the past. You obviously are too lazy or don't care.

6.Do you really think that Nancy, Harry, Chris, Charlie, Barnie, et al, care about you? SEND THE MESSAGE: You're FIRED.

IN 2010 YOU WILL HAVE A CHANCE TO GET RID OF THE SITTING CONGRESS: Up to 1/3 OF THE SENATE, AND 100% OF THE HOUSE.

MAKE SURE YOU'RE STILL MAD IN NOVEMBER 2010 AND REMIND THEIR REPLACEMENTS NOT TO SCREW UP.

It is ok to forward this to your sphere of influence if you are finally tired of the abuse.

Maybe it's time for the.........

Amendment 28

" Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators or Representatives, and Congress shall make no law that applies to the Senators or Representatives that does not apply equally to the citizens of the United States."

Let's get this passed around, folks these people in Washington have brought this upon themselves!!! It's time for retribution. Let's take back America.

If you don't agree you're just part of the problem of national apathy.