Morning Bell

Obamacare is Seriously Unconstitutional

On October 23rd, a reporter asked Speaker Nancy Pelosi (D-CA): “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Speaker Pelosi shook her head and before moving on to another question replied: “Are you serious? Are you serious??” Pressed for a more substantive response later, Pelosi’s press spokesman admonished the reporter: “You can put this on the record. That is not a serious question. That is not a serious question.”

The Congressional Budget Office (CBO) disagrees. In 1994, the CBO saidof an individual mandate to buy health insurance:

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. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

As much as Speaker Pelosi may wish otherwise, the CBO is dead on: the Supreme Court has never validated a federal power as intrusive as forcing all Americans to purchase a service due to their very existence. Sure, the Supreme Court has said that Congress may regulate a farmer’s production of wheat even if he never plans to distribute it off of his farm, and the Supreme Court has said Congress may ban the possession of Marijuana even if it is for personal use, but never before has the Supreme Court said the power to regulate commerce enabled Congress to force an individual to do something just because he existed.

In fact, the Supreme Court has always been clear that the Commerce clause must have some limits. In United States v. Lopez (1995), the Court struck down the Gun-Free School Zones Act, which attempted to reach the activity of possessing a gun within a thousand feet of a school. In United States v. Morrison, it invalidated part of the Violence Against Women Act, which regulated gender-motivated violence. In both cases, the Court found the regulated activity in each case to be noneconomic; it was outside the reach of Congress’s Commerce power, regardless of its effect on interstate commerce. The case for the constitutionality of the individual mandate is far weaker than either of these two cases. Congress was at least trying to regulate an individual’s activity in the cases above. But the mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.

If the individual mandate is Constitutional, then Congress could do anything. They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; require us to grow wheat (10 bushels each), or pay someone else to grow your share; require us to buy whatever they want.

Many on the left immediately point to state mandates that drivers purchase car insurance as proof of a mandate that all Americans buy health insurance is not new. But car insurance mandates are distinguishable in at least four ways: 1) they are state requirements and states have broader constitutional authority than the federal government; 2) they apply to drivers only, not all Americans (e.g. passengers are not required to carry insurance); 3) drivers use public roads; 4) states only require drivers to insure against injury to other drivers, not to insure themselves against personal injury.

Yesterday The Heritage Foundation’s Center for Legal and Judicial Studies released a Legal Memorandum written in conjunction with Georgetown University Law Center Professor Randy Barnett and Nathaniel Stewart explaining: Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional. Introducing the paper, Sen. Orrin Hatch noted:

James Madison said that if men were angels, no government would be necessary and if angels governed men, no limits on government would be necessary. Because neither men nor the governments they create are angelic, government and limits on government are both necessary for ordered liberty. Politics may tell us what we want to do, but the Constitution tells us what we may do and we must keep those separate. The ends do not justify the means for one simple reason – liberty. Liberty requires limits on government power, it always has and it always will.

Someone needs to explain this concept to Speaker Pelosi. Seriously.