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Why the Health-Care Bills Are Unconstitutional
If the government can mandate the purchase of insurance, it can do anything.
By ORRIN G. HATCH, J. KENNETH BLACKWELL AND KENNETH A. KLUKOWSKI
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
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.
Congress has many times stretched this power to the breaking point,
exceeding even the expanded version of the commerce power established by
the Supreme Court since the Great Depression. It is one thing, however,
for Congress to regulate economic activity in which individuals choose to
engage; it is another to require that individuals engage in such activity.
That is not a difference in degree, but instead a difference in kind. It
is a line that Congress has never crossed and the courts have never
In fact, the Supreme Court in United States v. Lopez (1995) rejected a
version of the commerce power so expansive that it would leave virtually
no activities by individuals that Congress could not regulate. By
requiring Americans to use their own money to purchase a particular good
or service, Congress would be doing exactly what the court said it could
Some have argued that Congress may pass any legislation that it believes
will serve the "general welfare." Those words appear in Article I of the
Constitution, but they do not create a free-floating power for Congress
simply to go forth and legislate well. Rather, the general welfare clause
identifies the purpose for which Congress may spend money. The individual
mandate tells Americans how they must spend the money Congress has not
taken from them and has nothing to do with congressional spending.
A second constitutional defect of the Reid bill passed in the Senate
involves the deals he cut to secure the votes of individual senators. Some
of those deals do involve spending programs because they waive certain
states' obligation to contribute to the Medicaid program. This selective
spending targeted at certain states runs afoul of the general welfare
clause. The welfare it serves is instead very specific and has been dubbed
"cash for cloture" because it secured the 60 votes the majority needed to
end debate and pass this legislation.
A third constitutional defect in this ObamaCare legislation is its command
that states establish such things as benefit exchanges, which will require
state legislation and regulations. This is not a condition for receiving
federal funds, which would still leave some kind of choice to the states.
No, this legislation requires states to establish these exchanges or says
that the Secretary of Health and Human Services will step in and do it for
them. It renders states little more than subdivisions of the federal
This violates the letter, the spirit, and the interpretation of our
federal-state form of government. Some may have come to consider
federalism an archaic annoyance, perhaps an amusing topic for law-school
seminars but certainly not a substantive rule for structuring government.
But in New York v. United States (1992) and Printz v. United States
(1997), the Supreme Court struck down two laws on the grounds that the
Constitution forbids the federal government from commandeering any branch
of state government to administer a federal program. That is, by drafting
and by deliberate design, exactly what this legislation would do.
The federal government may exercise only the powers granted to it or
denied to the states. The states may do everything else. This is why, for
example, states may have authority to require individuals to purchase
health insurance but the federal government does not. It is also the
reason states may require that individuals purchase car insurance before
choosing to drive a car, but the federal government may not require all
individuals to purchase health insurance.
This hardly exhausts the list of constitutional problems with this
legislation, which would take the federal government into uncharted
political and legal territory. Analysts, scholars and litigators are just
beginning to examine the issues we have raised and other issues that may
well lead to future litigation.
America's founders intended the federal government to have limited powers
and that the states have an independent sovereign place in our system of
government. The Obama/Reid/Pelosi legislation to take control of the
American health-care system is the most sweeping and intrusive federal
program ever devised. If the federal government can do this, then it can
do anything, and the limits on government power that our liberty requires
will be more myth than reality.
Mr. Hatch, a Republican senator from Utah, is a former chairman of the
Senate Judiciary Committee. Mr. Blackwell is a senior fellow with the
Family Research Council and a professor at Liberty University School of
Law. Mr. Klukowski is a fellow and senior legal analyst with the American
Civil Rights Union.