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.
Saturday, January 02, 2010
Why the Health-Care Bills Are Unconstitutional
I am not a huge Orrin Hatch fan, but he is absolutely right here. If Congress can force you to purchase a private product, then their powers are unlimited, and the constitution is meaningless.
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Nate Silver did a good job addressing this "unconstitutional" canard
http://www.fivethirtyeight.com/2009/11/constitutional-chicanery.html
That article does not address any relevant points. Whether Congress is allowed to have any role in healthcare is a completely different question as to whether they are allowed to have this role.
Never in our 220 years history is there any precedent for the federal government requiring you to purchase a product from a private party as a requirement for citizenship. Then again, until last year there was also no precedent for the president unilaterally changing contracts or taking over the operations of entire industries, so I suppose we live in unprecedented times.
Hatch: "the Constitution does not give Congress the power to require that Americans purchase health insurance."
Silver: "First, there is the fallacy that anything not specifically prescribed by the Constitution is unconstitutional. True, the Constitution doesn’t mention health care; but neither does it mention air traffic control. Is the FAA’s safeguarding of our skies from commercial crashes therefore unconstitutional? Of course not. First, there is the matter of the “necessary and proper” clause. And second, just because the Founders clearly meant to avoid the whole business of constitutionalizing specifically policies--see point #3, below--doesn't mean they didn't want the government to have any policies. If they did, why create a legislature?"
It's not required by federal law, but all states require people to have auto insurance. If they don't, you face steep fines, license revocation or jail time.
Certainly, we do live in unprecedented times but Keynesianism is hardly new. Despite libertarians longing for a decade-plus recession with 25%+ unemployment, pragmatic people (including Republicans like Bernanke and G.W. Bush) chose to save the economy by making hard decisions. Recall that the TARP and auto bailouts started under your Bush. I give Bush credit for realizing the rhetoric of free markets espoused by some members of his party was ridiculous.
States do not require you to have insurance merely to live in their state, it is only in return for driving on public roads. Furthermore they do not require you to insure yourself, only liability to others.
Air traffic control is clearly a part of interstate commerce, a power specifically given to Congress. Forcing me to purchase health insurance on myself, does not affect interstate commerce. In fact ironically, they have banned the ability to buy insurance over state lines.
Who was predicting 25% employment? Remember, when Obama was trying to scare us, he claimed that unemployment would only rise above 8%, if we didn't pass his magical stimulus package. Which obviously did a great job, now that unemployment is at 10%.
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