Cynical Synapse

Sun, 28 Mar 2010

On the Constitutionality of Health Care Reform

dog attacks receiver

The passing of health care reform is just the beginning. The bill itself is more than 2,000 long, which is why John Conyers didn’t bother to read the bill. And, why should they have read the bill, besides the obvious you should know what you’re voting on? I don’t know. Maybe because bill porked them in the ass?

Still, the bill, now law, doesn’t include the specifics of how to implement health care requirements. So, what will make it all work? Why, hundreds of thousands of pages of regulations from a variety of government agencies. Many of the health care changes won’t be implemented for several years, perhaps to permit time for government agencies to draft those implementing regulations. None of those regulations has to undergo consideration by Congress and they don’t get voted on. Implementing regulations just become ipso facto laws we all must comply with.

In the meantime, several states have enacted or are considering bills to limit Federal health care impact on the states. Honestly, these are an exercise in futility since Federal law trumps state law when the federal government has jurisdiction.

US Constitution

Which leads us to the fundamental question. Does the federal government, as embodied by Congress, have jurisdiction over health care? Many would argue no, and that’s the basis the lawsuit by 13 states attorneys general who claim the insurance mandate is a living tax. This is the most plausible assault on health care reform, since it contains a provision requiring everyone to buy health insurance. The usual argument made in support of this mandate is the interstate commerce clause of the constition. Article I, Section 8 of the Constitution provides the following powers for Congress:

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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

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.

John Conyers

Most Representatives and Senators aren’t concerned about the constitutionality of the individual insurance mandate in the health care overhaul legislation. In fact, Rep. John Conyers (D-MI) cited the “the good and welfare clause and a couple others” as the Constitutional basis for the health care legislation’s requirement that individuals buy health insurance. But there is no “good and welfare” clause in the Constitution. And, we’ve already looked at Article 1, Section 8, regarding welfare. The word “good” only appears once in the Constitution, in Article 3, Section 1, which deals with the Judicial branch, not the powers of Congress. Seems to me a longtime Member of Congress is failing his oath of office.

Conyers also said, “there’s nothing unconstitutional in this bill and if there were, I would have tried to correct it…” Um, how would he know? This is the same guy who said “What good is reading the bill?” Did I mention Conyers is chairman of the House Judiciary Committee?

Still, many argue the health care legislation is not constitutional. Regardless of the commerce clause, requiring people to buy health insurance may violate their constitutional right to individual liberty. In fact, the Supreme Court ruled on the side of the individual in several cases regarding medical treatment. The Court held individuals have a “constitutionally protected liberty interest in refusing unwanted medical treatment,” in Cruzan v. Director, Missouri Department of Health. Even more interesingly, in Washington v. Harper, the Court held prison inmates have a “significant liberty interest” in refusing antipsychotic medication. Similarly, children have a significant liberty interest in refusing medical treatment even if their parents requested it, according to the Court’s ruling in Parham v. J. R. It seems, then, requiring individuals to buy health care insurance is contrary to their liberty interest.

Andrew Napolitano

Judicial analyst Andrew Napolitano noted the Federal government cannot commandeer state legislatures. There have been several Supreme Court decisions affirming states rights. Napolitano, a former New Jersey Superior Court judge explained.

The Constitution does not authorize the Congress to regulate the state governments. Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done.

Napolitano believes the State Attorneys General lawsuit to overturn health care reform stands a good chance in the Supreme Court. “The states for 230 years have had near exclusive regulation over the delivery of healthcare,” he said. “The feds have had nothing to do with it.”

Congress dunce

Referring to the backroom deals used to garner enough support in the Senate, Napolitano said the “create “a very unique and tricky constitutional problem.” The Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others create a disparity in treatment among the states. Of the deals, Napolitano said they “clearly violate equal protection by forcing people in the other states to pay the bills of the states that don’t have to pay what the rest of us do.” Similarly, the tax on so-called Cadillac health plans can’t fairly be exempted for union members.

“The problem with the constitution is that those who take an oath to uphold it don’t take their oath seriously,” Napolitano said. Congress only has authority to craft legislation in the 17 aspects enumerated in the Constitution. That might explain why my Senators and Representative failed to answer my question as to what clause in the Constitution authorized the health care reform bill.

In short, the Constitution does not authorize Congress to regulate health care nor does it allow for mandating citizens buy anything, not even for their own good. The commerce clause allows for regulating interstate commerce, not creating it. Disparate treatment among the states and between groups violate the equal protection clause. And, for the record, there is no good and welfare clause in the Constitution. Someone please tell the Chairman of the House Judicial Committee.



  1. CS, I have to agree with you that requiring people to purchase health care insurance was not a smart move by the Democrats. This was something the Republicans offered up back in the early 1990s. It was bad idea then and a bad idea now. Although I’m certainly no Constitution expert, on the surface it seems that if this is deemed constitutional it could open up a whole can of worms on other issues. On the other hand, we can’t expect the government to pay for those who can afford it but refuse to buy health care coverage, or penalize those who are willing to buy coverage by increasing their preminums. Granted many who don’t have coverage can’t afford it and they will need help. There has to be an answer to all this, but we will never get it without some meaningful bipartisan discussions. The one thing that worry’s me is that we may be moving very rapidly toward health care for only those who can afford it.

    Comment by The Old Man — Sun, 28 Mar 2010 @ 7:07 pm

    • Thanks for your thoughts. Agreed, we need bipartisan engagement. We saw absolutely zero during this debate and I think there’s enough blame for both sides.

      I’d like to start with hiring more Medicare/Medicaid fraud investigators. There’s enough waste, fraud, and abuse out there to pay their salaries and return enough tax dollars to offer subsidized premiums the the lower middle class.

      Comment by cynicalsynapse — Mon, 29 Mar 2010 @ 8:37 am

  2. 1) Steal a Con Law I syllabus from a nearby law school
    2) Read at least 5 commerce clause cases after 1936, including Laughlin
    3) Re-read your article.
    4) Feel your heart drop and your eyes widen to their extreme as the obviousness of the article’s errors manifest themselves to you in light of your new education
    4) Delete your article before anyone else reads it and you further embarrass yourself
    5) Profit

    Comment by DC — Tue, 30 Mar 2010 @ 8:13 pm

    • DC, thanks for stopping by and for your thoughts. I admit I’m not a Constitutional law expert.

      Can you recommend 5 commerce clause cases that may be pertinent to this situation that I could review? Do you have any other examples of something a Federal law requires people to purchase that does not involve a choice to purchase another product/service or engage in some activity?

      There are still at least two other potential challenges to the Constitutionality of the health care reform law. Requiring the purchase of insurance may infringe individual’s liberty interests. Disparate treatment of the states regarding increased Medicaid stipulations may be counter to the equal protection clause.

      Comment by cynicalsynapse — Tue, 30 Mar 2010 @ 10:05 pm

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