Free Markets, Free People

Constitutional Questions About Health Care Reform

It’s about time:

President Obama has called for a serious and reasoned debate about his plans to overhaul the health-care system. Any such debate must include the question of whether it is constitutional for the federal government to adopt and implement the president’s proposals. Consider one element known as the “individual mandate,” which would require every American to have health insurance, if not through an employer then by individual purchase. This requirement would particularly affect young adults, who often choose to save the expense and go without coverage. Without the young to subsidize the old, a comprehensive national health system will not work. But can Congress require every American to buy health insurance?

My question? When has such a concern stopped the government in the past under either Republican or Democratic administrations or Congress?

Not that this isn’t an excellent question and I’m glad to see someone raising it. But you have to ask, would we be in the shape we’re in today if past administrations and Congress (not to mention SCOTUS) had seriously been concerned with the Constitution?

So, having had my say about that, let’s explore the point about mandated insurance coverage that David Rivkin Jr and Lee Casey try to make Their considered opinion is contained in a fairly short paragraph, and the answer is “no”:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Rivkin and Casey support their conclusion with case law and precedent which they claim would preclude a constitutional basis for an individual mandate in either the most abused clause of the Constitution – the commerce clause – or within the power to tax. Given that, they say:

This leaves mandate supporters with few palatable options. Congress could attempt to condition some federal benefit on the acquisition of insurance. States, for example, usually condition issuance of a car registration on proof of automobile insurance, or on a sizable payment into an uninsured motorist fund. Even this, however, cannot achieve universal health coverage. No federal program or entitlement applies to the entire population, and it is difficult to conceive of a “benefit” that some part of the population would not choose to eschew.

Taxation as a means (such as being fined by the IRS if you don’t have health insurance) of enforcing the mandate is a Constitutional no-go as well:

Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision.

They conclude:

Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system. Absent this politically dangerous — and therefore unlikely — scenario, advocates of universal health coverage must accept that Congress’s power, like that of the other branches, has limits. These limits apply regardless of how important the issue may be, and neither Congress nor the president can take constitutional short cuts. The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

Sounds good and I’d love to believe it – but looking around, you have to wonder how we got to where we are today if we’re as committed to the limits imposed by the Constitution as these two believe. If you listen to them, this mandate business is dead. No can do. But we’ve watched our legislators and the executive branch – on both sides – consistently find ways around the obstacles (and case law) these two lay out there.

I want to believe it, but I’m forced by reality to say, “I’ll believe it when I see it”.



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24 Responses to Constitutional Questions About Health Care Reform

  • wonder if the ACLU would take on a case from a young person who claimed that a requirement to have health insurance was discriminatory against young people.

  • “But can Congress require every American to buy health insurance?”

    Unfortunately the “general welfare” clause is ambiguous enough, if one favors that interpretation, to rationalize a lot of unjust or questionable uses of government compulsion. Here’s a more pragmatic question: Can it actually enforce a law requiring every American to buy health insurance?

    Most states require motorists to own car insurance, and they’ve failed pretty miserably at that for the most part. In 2004, the national average of uninsured motorists was an estimated 14.6% — one in seven! In California for example, 25% of motorists are uninsured ( There are a lot of incentives for someone to not buy car insurance, despite it being against the law. Tickets for driving uninsured are cheap. Insurance is expensive. Getting a ticket or into a serious accident is unlikely. Many people drive cars that aren’t worth insuring.

    I don’t see any reason to think the federal government will do a better job of forcing 310 million people to buy health insurance. And I cannot predict any efforts to do will be efficient, cheap, or fair.

    • The General Welfare clause is in reference to the scope over which the Congress can tax. So if there is an item within Congress’ power which is for the General Welfare, they can raise taxes for it. However, it does not grant Congress the ability to have any power that is for the General Welfare.

  • J,

    I believe that you are correct that the clause that will be used to justify the health management bill will be the “general welfare” clause.

    United States v. Butler seems to support the idea that the “general welfare” clause is somewhat ambiguous and as such, may not be interpreted to invent a right of the federal government over states rights. The Court wrote:
    If the novel view of the General Welfare Clause now advanced in support of the tax were accepted, that clause would not only enable Congress to supplant the States in the regulation of agriculture and of all other industries as well, but would furnish the means whereby all of the other provisions of the Constitution, sedulously framed to define and limit the power of the United States and preserve the powers of the States, could be broken down, the independence of the individual States obliterated, and the United States converted into a central government exercising uncontrolled police power throughout the Union superseding all local control over local concerns.

    One year later, in Helvering v. Davis, the SCOTUS seems to do a reversal. Helvering was a case challenging the Social Security tax. The tax was advanced under the “general welfare” clause. The Court held for the tax and said:
    Congress may spend money in aid of the “general welfare.” Constitution, Art. I, section 8; United States v. Butler, 297 U.S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law.

    This is a highly troubling and dubious reasoning to me. In essence, the court seems to be saying that what Congress says fits into the “general welfare” of the people, is the law of the land. There is abdication of the “checks and balances” system here. Congress should not be the only and unique decider of what is “the general welfare.”

    The sad part is that the managed health care bill is a great deal like Social Security. As such, it probably will stand legal challenges on the basis of the general welfare clause as you state.

    Everybody in the workplace must be carefully vetted for inconsistencies with a progressively upgraded E-Verify. Even without stealing into the reformed health care system by federal law the taxpayers must support illegal immigrants for emergency medical services. Foreign nationals use this mandatory law, as an excuse for any kind of minor injury or illness.

    The travesty that drives the faltering health care system is of course money. Everyday our televisions are monotonously inundated with adverts about new drugs and medicine. Personally I’m sick of the continuous kaleidescope of ads, trying to program our brains to buy another boring antihistamine? We should also question the majority of Republicans, why there are rumors of a dark conspiracy? Could it be that that these people have a cemented interest in killing any type of reform? How many of these politicians have secret stocks in multi-bed hospitals, greedy profiteering insurance firms or the pharmaceutical industry. THE QUESTION THAT MUST BE ASKED IS, WHO HAS VOTED AGAINST A PUBLIC OPTION? WHICH POLITICIANS HAVE A FINANCIAL STAKE IN KILLING ANY REFORM? IS THERE INFORMATION THAT ANSWERS THESE QUESTIONS? My health care experience was mainly in England and Australia and prior to the mass immigration invasion was positively first class.

    Of course the status quo doesn’t want any change in the trillion dollar medical complex, because it could strictly confine a multitude of new common sense laws? Sadly, I have listened to lies sprouting from the special interest lobby over the airwaves for weeks. Trouble is, a majority of the American people believe this tripe that we are constantly bombarded with?

    We are still conveying many entitlement programs to illegal aliens and their families, with extorted taxes.We have always been the recipients of business welfare and likely always will be, because the pariah businesses that hire illegals, never pay anything to their support. GET RAW ANSWERS AT NUMBERSUSA Tell those in WASHINGTON no more AMNESTIES. USE ATTRITION TO DEPORT THEM THROUGH E-VERIFY, 287 G, NO MATCH SOCIAL SECURITY LETTERS AND LIGHTENING ICE RAIDS. CONTACT YOUR POLITICIAN 202-224-3121 AND DEMAND NO WEAKENING OF CURRENT LAWS?

  • How you tell when politician lie?

    Comrade Pelosi blink

    Slick Willy rub nose

    Comrade Oboma open mouth

    Dumb Donkey Gibbs laugh…Hehaw..he..haw..he..haw!

    Is this really healthcare “reform”?

    Compare Obama Care vs Igor Care at Obama vs Igor Care

    I Igor produce Barrack Milhaus Hussein Obama Birth Certificate at

  • We currently pay a mandatory Social Security tax which covers retirement, disability, survivor’s, and a couple of other benefits. I don’t see why a mandatory health insurance tax will not be just as constitutional.

    • It is not a question of taxation. The question is can the government force all Americans to buy a health insurance plan (“individual mandate”), not whether it can levy a tax to pay for health insurance, either as a public option or a single-payer system. Besides, Obamacare proponents insist that it will be self-sufficient and not need funding through taxation.

      • Then Obama’s plan isn’t necessary. Each state has a non for profit health insurance offering. For example, the Blue Cross/Blue Shield offerings in many states are non-profit. In other states, its not BC/BS but a different provider. In my state, it is the non-profit option and its the most common health insurance as well.

        The only justification for Obama’s offering then becomes the need to offer it for a better price. Government bureaucracy is going to not only be competitive but cheaper than a non-profit? Not my experience. The only way they can guarantee it, is if they subsidize it.

      • What makes a mandatory health insurance plan constitutionally different from a mandatory retirement pension plan or disability insurance plan?

        In any case, I think that the left will be satisfied to take your money whether you choose to participate in the plan or not.

  • I live in Massachusetts. Let’s be clear. Mandatory Health Insurance is not a tax the government levies in the way that social security is a tax. Mandatory health insurance is a forced contract between an individual citizen/resident and a private company, regardless of whether the individual wants to contract with the company. I can think of no other arrangment in which the government tells people to buy something from a private company or face a tax penalty for not doing so. If I buy a house, the bank can stipulate I buy homeowners insurance because that is one of the terms of the selling/buying agreement. I do not have to buy a house if I do not want to buy home owners insurance. The same is true when I buy a car.

    Forcing Americans to buy health insurance violates Americans right to enter into contracts and agreements with private entities freely. Can the government force me to buy a car, a house, or an education in the name of the public good? If not, then why can it force me to buy health insurance I may not want?

    Moreover, what contract have I entered into with the government when it comes to health insurance? Is breathing, living, existing constituitive of a contract? And if so, how?

    Mandatory Health Insurance is NOT constitutional on the grounds that when adults enter into contracts, in order for them to be legal and binding, they must enter into them of their own free will. In other words, the government’s threat to fine (harm) those who do not buy health insurance is a form of coercion and force that makes the contract between the individual and the insurance company nonconsensual and, thus, null and void. Think of it this way: If my husband holds a gun to my head and threatens to kill me if I do not sign divorce papers granting him full ownership of our combined marital property and I sign, will a family court judge honor that contract once he is aware that I signed on pain of death?

  • NO CO-OP’S! A Little History Lesson

    Young People. America needs your help.

    More than two thirds of the American people want a single payer health care system. And if they cant have a single payer system 77% of all Americans want a strong government-run public option on day one (86% of democrats, 75% of independents, and 72% republicans). Basically everyone.

    Our last great economic catastrophe was called the Great Depression. Then as now it was caused by a reckless, and corrupt Republican administration and republican congress. FDR a Democrat, was then elected to save the nation and the American people from the unbridled GREED and profiteering, of the unregulated predatory self-interest of the banking industry and Wallstreet. Just like now.

    FDR proposed a Government-run health insurance plan to go with Social Security. To assure all Americans high quality, easily accessible, affordable, National Healthcare security. Regardless of where you lived, worked, or your ability to pay. But the AMA riled against it. Using all manor of scare tactics, like Calling it SOCIALIZED MEDICINE!! :-0

    So FDR established thousands of co-op’s around the country in rural America. And all of them failed. The biggest of these co-op organizations would become the grandfather of the predatory monster that all of you know today as the DISGRACEFUL GREED DRIVEN PRIVATE FOR PROFIT health insurance industry. And the DISGRACEFUL GREED DRIVEN PRIVATE FOR PROFIT healthcare industry.

    This former co-op would grow so powerful that it would corrupt every aspect of healthcare delivery in America. Even corrupting the Government of the United States.

    This former co-op’s name is BLUE CROSS/BLUE SHIELD.

    Do you see now why even the suggestion of co-op’s is ridiculous. It makes me so ANGRY! Co-op’s are not a substitute for a government-run public option.

    They are trying to pull the wool over our eye’s again. Senators, if you don’t have the votes now, GET THEM! Or turn them over to us. WE WILL! DEAL WITH THEM. Why do you think we gave your party Control of the House, Control of the Senate, Control of the Whitehouse. The only option on the table that has any chance of fixing our healthcare crisis is a STRONG GOVERNMENT-RUN PUBLIC OPTION.

    An insurance mandate and subsidies without a strong government-run public option choice available on day one, would be worse than the healthcare catastrophe we have now. The insurance, and healthcare industry have been very successful at exploiting the good hearts of the American people. But Congress and the president must not let that happen this time. House Progressives and members of the Tri-caucus must continue to hold firm on their demand for a strong Government-run public option.

    A healthcare reform bill with mandates and subsidies but without a STRONG government-run public option choice on day one, would be much worse than NO healthcare reform at all. So you must be strong and KILL IT! if you have too. And let the chips fall where they may. You can do insurance reform without mandates, subsidies, or taxpayer expense.

    Actually, no tax payer funds should be use to subsidize any private for profit insurance plans. So, NO TAX PAYER SUBSIDIZES TO PRIVATE FOR PROFIT PLANS. Tax payer funds should only be used to subsidize the public plans. Healthcare reform should be 100% for the American people. Not another taxpayer bailout of the private for profit insurance industry, disguised as healthcare reform for the people.

    God Bless You

    Jacksmith — Working Class

    Twitter search #welovetheNHS #NHS Check it out



    • Young people, learn actual history-
      FDR’s socialist policies made the depression longer and worse

      Even FDR Treasury Secretary Henry Morgenthau admitted the New Deal had failed. “We are spending more than we have ever spent before and it does not work,” he declared in 1939. “We have never made good on our promises…I say after eight years of this Administration we have just as much unemployment as when we started…And an enormous debt to boot!”

      “So FDR established thousands of co-op’s around the country in rural America. And all of them failed.” …… “This former co-op’s name is BLUE CROSS/BLUE SHIELD”
      Did they all fail or did BLUE CROSS survive? jacksmith can’t agree with himself for more than a minute because he’s pushing a an emotion-driven farce.

    • “Our last great economic catastrophe was called the Great Depression. Then as now it was caused by a reckless, and corrupt Republican administration and republican congress. FDR a Democrat, was then elected to save the nation and the American people from the unbridled GREED and profiteering, of the unregulated predatory self-interest of the banking industry and Wallstreet.”

      You show an understanding of neither history nor economics. The Great Depression was created by the gross incompetence of the Federal Reserve — an independent body insulated from political partisanship.

      “Because of its dramatic character, the stock market crash in October, 1929, which terminated the bull market of 1928 and 1929 is often regarded as both the start and the major proximate cause of the Great Depression. Neither is correct. The peak of business was reached in mid-1929, some months prior to the crash. The peak may well have come as early as it did partly as a result of relatively tight money conditions imposed by the Federal Reserve System in an attempt to curb “speculation” — in this indirect way, the stock market may have played a role in bringing about the contraction. The stock market crash in turn undoubtedly had some indirect effects on business confidence and on the willingness of individuals to spend which exerted a depressing influence. But by themselves, these effects could not have produced a collapse in economic activity. At most, they would have made the contraction somewhat longer and more severe than the usual mild recessions that have punctuated American economic growth throughout our history; they would not have made it the catastrophe it was.

      “. . . In retrospect it is clear that the Reserve System should already have been behaving differently than it did [in October 1930], that it should not have allowed the money stock to decline by nearly 3 per cent from August 1929 to October 1930 — a larger decline than during the whole of all but the most severe prior contractions . . .

      “. . . The initial wave of bank failures died down and in early 1931 there were signs of returning confidence. The Reserve System took advantage of the opportunity to reduce its own credit outstanding — which is to say, it offset the naturally expansionary forces by engaging in mild deflationary action. Even so, there were clear signs of improvement not only in the monetary sector but also in other economic activities. The figures for the first four or five months of 1931, if examined without reference to what actually followed, have all the earmarks of the bottom of a cycle and the beginning of a revival.

      “The tentative revival was however short-lived. Renewed bank failures started another series of runs [on banks] and again set in train a renewed decline in the stock of money. Again, the Reserve System stood idly by. In the face of an unprecedented liquidation of the commercial banking system, the books of the “lender of last resort” show a decline in the amount of credit it made available to its member banks.

      ” . . . A temporary reversal of policy in 1932 involving the purchase of $1 billion of government bonds slowed down the rate of decline. Had this measure been taken in 1931, it would almost surely have been sufficient to prevent the debacle just described. By 1932, it was too late to be more than a palliative and , when the System relapsed into passivity, the temporary improvement was followed by a renewed collapse terminating in the Banking Holiday of 1933 — when every bank in the United States was closed for over a week. A system established in large part to prevent a temporary suspension of convertibility of deposits into currency — a measure that had formerly prevented banks from failing — first let nearly a third of the banks of the country go out of existence and then welcomed a suspension of convertibility that was incomparably more sweeping and severe than any earlier suspension . . .

      “All told, from July 1929 to March 1933, the money stock of the United States fell by one-third . . . Had the money stock been kept from declining [by the Federal Reserve], as it clearly could and should have been, the contraction would have been both shorter and far milder. It might still have been relatively sever by historical standards. But it is literally inconceivable that money income could have declined by over one-half and prices by over one-third in the course of four years if there had been no decline in the stock of money.”

      — Milton Friedman, Capitalism and Freedom, ch. III “The Control of Money”, pp. 44-51.

  • It is becoming more and more obvious that the inexplicably vigorous opposition to healthcare reform in this country is being generated by outside forces. The way that our inefficient system cripples our economy has been recently made obvious by the collapse of GM and Chrysler, both recently ruined largely by their inability to keep up with the astronomical cost of healthcare in America. Who profits from our continuation of the status quo and what are those entities doing to maintain it?

    1. The non-US G8 nations and the Euro zone.
    2. The Pharmaceutical Industry (Switzerland, France, Japan, Germany).
    3. The Insurance Industry (France, Holland, England).
    4. The Medical Imaging Industry (Germany, Holland).

    Don’t let yourselves become tools of the international healthcare conspiracy like Newt Gingrich (Siemens).

    • Who profits from our continuation of the status quo and what are those entities doing to maintain it?

      And who is in favor of the status quo? Just because one is vigorously opposed to a terrible “reform” (a “solution” worse than the problem) does not mean they think the current system is good. The only proponents of the status quo are likely seniors already on Medicare. I would also venture that American individuals greatly “profit from our status quo”, as they are the beneficiaries of the most advanced and most efficacious health care in the world.

      “1. The non-US G8 nations and the Euro zone [profit from the status quo].”

      Umm, what? Okay, let’s look at your supposed evidence…

      “2. The Pharmaceutical Industry (Switzerland, France, Japan, Germany).”

      Let’s see… Two American companies, Pfizer and Johnson & Johnson, are — by a huge margin — the two largest pharmaceutical companies in the world. In fact, eight of the top 15 by revenue are American companies.

      “3. The Insurance Industry (France, Holland, England).”

      What?? What Americans buy health insurance plans from foreign companies? Aetna, Humana, Blue Cross/Blue Shield, UnitedHealthCare, Health Net, Kaiser Permanente, Coventry… All American companies. Name one, or show some evidence of any European company that is competitive in American health insurance.

      “4. The Medical Imaging Industry (Germany, Holland).”

      This makes no sense whatsoever. Yes, some biomedical engineering firms are European, but what relevance does that have upon the American health care system? They would stand to profit no less under a government-run plan in the U.S., unless you are suggesting that system would be so inept that it couldn’t afford to continue to purchase cutting-edge, life-saving biomedical equipment. I hardly think that is an argument in your favor, however.

      Why are you so terrified of international commerce, where both parties enter into an arrangement of mutual benefit, anyway? Clearly that is the case when it happens in the biomedical engineering example (your only one that holds any water). If at all, you should be least afraid of competition from the European Union, as their labor laws make them uncompetitive in direct competition to American firms. The fact is, though, that when Americans buy European products, it is usually for good reason. For instance, the Germans simply make the best instrumentation in the world.

  • jacksmith: More than two thirds of the American people want a single payer health care system. And if they cant have a single payer system 77% of all Americans want a strong government-run public option on day one (86% of democrats, 75% of independents, and 72% republicans). Basically everyone.


    and if 77 out of 100 people jumped off a cliff, would you?

    I would be happy to be part of the 23% of basically nobody that did not.

  • jacksmith seems to be foaming at the mouth. Why is it that guys like jacksmith cannot say profit without dragging in the word “greed”. Since the average health insurance company is making a profit of about 3.5% of revenue, it is really, really hard to call that greedy.

    A second question for jacksmith is why would he think anybody reading qando would be impressed the leftist writings of Krugman? If anything, a Krugman reference is counterproductive.

    I particularly like this part
    “They are trying to pull the wool over our eye’s again. Senators, if you don’t have the votes now, GET THEM! Or turn them over to us. WE WILL! DEAL WITH THEM.”

    I wonder how jacksmith plans to deal with “them”: tar and feathers? assassination? A stern talking to? Maybe forcing them to listen to jacksmith reading Krugman columns?

    Of course, jacksmith is a drive by and unlikely to be heard from again.


  • Yes, I’ve been harping on this point for centuries — Congress cannot make you buy something merely because you exist.

  • And what if you still don’t buy their required health insurance, off to the FEMA camps where you will enjoy taxpayer paid free health insurance like regular prisoners?

    Gonna get kinda crowded.

  • We’ve long since passed the Rubicon of allowing Congress to arrogate ANY power to the federal government that a majority of congressmen will vote for. The test has become NOT “Is it constitutional?”, but rather “Is it intended to do some good?”

    It’s encouraging that SOMEBODY in MiniTru is talking about constitutionality and enumerated powers, but I think it’s really too late for all of that. Health care takeover is not going to be defeated on esoteric concerns about the commerce clause or contract law, but on the pragmatic concern of cost. Unfortunately, there are plenty of people who either don’t see that national health care will be a budget killer… or else simply don’t care because they’ve been told that somebody else is paying the check.

  • Granted, Obama and the federal government will pass whatever law they choose in the name of costs and the public good. However, when people on the Right stood up (and continue to stand up) at Town Hall Meetings, screaming about the evils of “death panels” and whatever else, the Democrats scripting the bills actually struck provisions for end of life counseling from their bills. This is no small thing.

    I wonder what would have happened or what would happen if at every public speaking opportunity where Democrats are describing their plans, people stood up and specifically opposed the individual mandate, using passionate and reasoned Constitutional arguments. If the Democrats backing “Health Insurance/Care Reform” are willing to revise their bills because of misinformation and rumors shouted at them from people who didn’t even vote for them, then I would think that they might strike the individual mandate–an actual provision–from their bills if intelligent, well-informed, well-organized, highly-vocal individuals, some of whom did vote for them, turned out in large numbers to oppose it.

    There are allegedly 47 million uninsured people representing a broad cross section of the population. Many are self-employed, others are young adults in their 20s and 30s, some are simply healthy people who have yet to become catastrophically ill or injured, a number are part-time workers who don’t receive insurance benefits, many others pay out of pocket when they need medical treatments and services, and still others are people who do not use Western medicine under any circumstances. It amazes me that so many people, who this mandate will affect directly, aren’t riled up enough to organize and oppose it.

  • “It is becoming more and more obvious that the inexplicably vigorous opposition to healthcare reform in this country is being generated by outside forces.”

    Is that the new buzzword? First, concerned voters were “racists”, then “nazis”, then “un-American”, then they were too well-dressed, and now they are “outside forces.”

    The best hope for killing health care reform is the insistence by the left that opposition is nothing more than a Republican-led ruse. Keep insulting moderates and independents, lest they forget how you feel about them.