There is a significant constitutional question hanging over the entire Obamacare project: Is it constitutional to require citizens to buy health insurance? This is no minor question, but Obamacare pushers have generally refused to engage.
The Administration has been asked about the matter for the second time, andnot only has it not asked the lawyers to check question out, but apparently, it has no intention of doing so. From the story:
White House Spokesman Robert Gibbs said today that he does not know if White House lawyers have reviewed whether it is constitutional for the federal government to order individuals to buy health insurance and said that the White House is not seriously considering the concerns of people such as Sen. Orrin Hatch (R.-Utah) who believe the mandate is not constitutionally justified.
This was the second time in two weeks that Gibbs had dismissed concerns that the Constitution does not give the federal government the power to force individuals to purchase items the government wants them to purchase….Gibbs was asked by a reporter on Monday: “Have White House lawyers looked at this issue? Has this been examined in any way?” Gibbs responded: “Not that I know of. I don’t think it has gotten to the point where anybody questions the legitimacy of it.”
Gibbs is just refusing to pay attention. A lot of people are bringing this question up, and our leaders are all punting. Perhaps they don’t care whether it is constitutional or not. Perhaps they worry that the bill exceeds the government’s power and want to keep that matter quiet until it passes. Perhaps the idea that there could actually be constraints on the government’s power seems quaint to them. But shouldn’t the constitutionality of mandatory purchase be addressed definitively before our representatives vote on the bill?
November 2nd, 2009 | 6:10 pm
I’m still trying to grasp how campaign finance ‘reform’ and ‘rights’ like that found in Roe v. Wade and countless others are Constitutional by even the most liberal reading of the document and a lot of those didn’t even need laws passed to justify them!
November 2nd, 2009 | 7:49 pm
Oh, for heaven’s sake. Teddy Kennedy who lived in the tabloids was one of them. A former one of them dances on one of those reality contest shows in a most undignified manner; his dancing at all would be considered by the Romans unconstitutional. This president and the two before him have been admit substance users, and those who elected two of them grew up on MTV, were taught history by teachers who prided themselves on “making them learn concepts, not dates,” and rely on computers and spellcheck rather than ever having gotten an actual basic education. Obama said he grew up listening to Michael Jackson. These are Today’s Democrats. What do you expect? Constitution? What Constitution?
November 2nd, 2009 | 8:02 pm
Of course these mandates are completely unconstitutional, but with or without them the abominations winding their way through Congress will destroy the private insurance industry, rendering the issue moot.
We also must recall that IIRC Pres. George W. Bush actually stated that he believed McCain-Feingold was unconstitutional even as he was signing it (and it must be pointed out that a Supreme Court so ignorant of its own field that it can approve government-imposed limits on political speech should not be counted on to come to the correct decision on insurance mandates either). I think a quaint but valid case could be made that impeachment is reasonable for a president who behaves like that.
November 2nd, 2009 | 8:43 pm
The only argument that one could employ against the constitutionality of forcing citizens to buy health care would be to say that it impinges on the citizens’ liberty of contract, with such a liberty being implicit in the 14th amendment’s mention of life, liberty and property. Such an argument would be similar to those used to strike down minimum wage and maximum work hour laws in the 1930s. But (as the Supreme Court later admitted) the Constitution does not protect liberty of contract from state regulation: it just requires that due process be followed when depriving or limiting a citizen’s liberties.
It would not seem consistent to argue on one hand that the Supreme Court ought not to read the right to abortion into the liberty clause of the 14th amendment while arguing on the other hand that the Court should read the special protections for liberty of contract into the same Amendment. One must either accept both or reject both.
I for one would reject both and say that if Obamacare is to be rejected, it is to be rejected as bad law. But not all bad laws are unconstitutional.
November 2nd, 2009 | 9:31 pm
Um, no, Leo. The argument rather is that by no possible stretch of the imagination can this be a power of the federal government under the commerce clause. This would imply that simply by _existing_, people (including newborn infants) are somehow engaging in activities that have something to do with Interstate Commerce. If that works, then my neighbor’s dog is also engaging in Interstate Commerce. However creative other extensions of federal power have been, they have at least required one to engage in some sort of _activity_ (such as running a business, or at least growing wheat, for crying out loud) before falling under the coercive direct power of the federal government. If this is allowed to be constitutional, the whole, quaint notion of enumerated powers is turned into a complete joke.
By the way, I’ve asked this before: Does the Baucus version also have mandatory purchase?
November 2nd, 2009 | 11:20 pm
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November 3rd, 2009 | 7:14 am
ECM: Don’t be perplexed. Try to read and understand the decisions as well as the Constitution. If you’re really puzzled over Roe v. Wade, have a look at the landmark that preceded it, Griswold v. Connecticut. Roe didn’t happen in a vacuum.
November 3rd, 2009 | 10:13 am
I think I see your point, Lydia: If a law mandating the purchase of health insurance were part of the powers enumerated in the Constitution, then it could only fall under the Interstate Commerce Clause; but that clause is directed only toward regulating economic activities that have been initiated by individuals. Since the proposed law first mandates and then regulates such transactions.
My reply is that it’s amazing how elastic the Interstate Commerce Clause already has shown itself to be. The Civil Rights Act of 1964, which prohibits racially discriminatory economic behavior–including transactions that are not obviously interstate–was upheld as Constitutional. I’m glad of that, and I would add that that the mandating the purchase of insurance seems far less of a stretch of the Commerce Clause than the subsumption of intrastate commerce under interstate.
November 3rd, 2009 | 1:19 pm
I have real problems with the constitutionality of the 1964 act, but *at least* one did not fall under its scope unless one engaged in business activities (ran a business) which therefore “had the power to affect” Interstate Commerce. Strained? Sure it’s strained. But they at least thought they had to strain. Here, one just _exists_ and falls under the direct regulatory power of the federal govt. If the commerce clause can cover that, than the federal government can also require me not to eat broccoli on Tuesdays, or _to_ eat broccoli on Tuesdays, or to stand on my head, or anything, and it all falls under the commerce clause. In other words, there is no such thing whatsoever as a need for the federal government to give some actual argument for its authority to mandate actions on the part of individuals, all individuals, every person breathing in and out within the boundaries of the United States. Which is, essentially, the complete, total, end of the vision of constitutionally limited federal government powers as encoded in the constitution originally.
November 4th, 2009 | 11:52 am
Not only that, Lydia, but if you fail to buy your insurance, you’ll be fined. And that fine is going to be collected by the IRS. Now…what does the IRS do if you fail to pay what you owe them? eventually, they seize your possessions. Your home, your land – whatever…and auction them off to satisfy your debt.
So…don’t buy your health insurance, and end up homeless.
Think not?
November 4th, 2009 | 6:27 pm
[...] OBAMACARE: Administration’s Curious Incuriousity About Constitutionality of Forced Insurance Purchase; [...]
November 5th, 2009 | 10:39 am
Leo, I’ve said in previous blog entries here on this issue that a government mandate for all adults to purchase health insurance would fall afoul of the prohibition against a poll tax in the body of the Constitution. It would also raise Tenth Amendment and even First Amendment objections.
If the feds can order you to buy health insurance, then they can also order you to buy a house to fix the current housing market problems—or buy a new GM or Chrysler car to help those struggling automakers. In principle there is no difference.
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