Is the healthcare proposal constitutional?

Sen. Hatch Questions Constitutionality of Obamacare: If Feds Can Force Us to Buy Health Insurance ‘Then There’s Literally Nothing the Federal Government Can’t Force Us to Do’Thursday, November 26, 2009By Terence P. Jeffrey, Editor-in-Chief
Sen. Orrin Hatch (R.-Utah) (Congressional photo)

(CNSNews.com) - Republican Sen. Orrin Hatch of Utah, who has served in the Senate for 33 years and is a longtime member of the Judiciary Committee, told CNSNews.com that he does not believe the Democrats’ health-care reform plan is constitutionally justifiable, noting that if the federal government can force Americans to buy health insurance “then there is literally nothing the federal government can’t force us to do.”Both the House and Senate versions of the health-care reform plan would force all individuals who are citizens or legal residents of the United States to buy health insurance. President Obama has endorsed this provision.Hatch said if the federal government starts ordering Americans to purchase specific products without being able to plausibly justify that mandate through the Commerce Clause of the Constitution which empowers Congress to regulate interstate commerce, it will mean “we’ve lost our freedoms, and that means the federal government can do anything it wants to do to us.”

The Commerce Clause, found in Section 8 of Article 1 of the Constitution, says: “The Congress shall have power to … regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”Hatch said this constitutional language authorizes Congress to regulate some types of commercial “activity,” which is different from authorizing Congress to force an individual American to engage in a commercial activity he or she is not presently engaged in and--as a free person--does not want to engage in. He said that “not one” of his Democratic colleagues has given a coherent constitutional argument to explain where Congress would derive the authority to do the latter.According to the Congressional Budget Office, the federal government has never before mandated that Americans buy any good or service.In 1994, when Congress was considering a universal health care plan formulated by then-First Lady Hillary Clinton, the Congressional Budget Office studied that plan’s provision that would have forced individuals to buy health insurance and determined it was an unprecedented act.“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,” the CBO concluded. “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.”“I think there’s a real constitutional issue there,” Hatch said on the CNSNews.com program “Online with Terry Jeffrey.”He rejected the argument some have made that the federal government forcing everyone to buy health insurance is no different than state governments mandating that people who want to drive must buy auto insurance.“You know, the illustration they give all the time is: Well, states require people to buy auto insurance. Yeah, they do, if they want to drive,” said Hatch. “But here would be the first time where our [federal] government would demand that people buy something that they may or may not want. And, you know, if that’s the case, then we didn’t need a 'Cash for Clunkers,' all we had to do is have the federal government say you all got to buy new cars, no matter how tough it is on you. You know, they could require you to buy anything. And that isn’t America. That’s not freedom. That’s not constitutionally sound. Now, there may be some gimmicky way that they can do this, but I can’t think of a gimmicky way that would be constitutionally justified.” Hatch was asked about the argument made by House Majority Leader Steny Hoyer (D.-Md.), who told CNSNews.com that the constitutional phrase that says Congress shall have the power to provide for the “general welfare”--which appears in the prefatory language preceding the Commerce Clause and the other enumerated powers of Congress--gives Congress the power to mandate that individuals purchase health insurance. He rejected this argument.“Well, keep in mind the General Welfare Clause hasn’t been used for years, except through the Commerce Clause--Article I, Section 8,” said Hatch. “And frankly the Commerce Clause affects, quote, ‘activities,’ unquote. And, you know, the government telling you you have to buy health insurance--mandating that you have to buy health insurance--is not an activity. That’s telling you you got to do something you don’t want to do.“Well, let’s put it this way,” said Hatch. “If that is held constitutional--for them to be able to tell us we have to purchase health insurance--then there is literally nothing that the federal government can’t force us to do. Nothing.”Hatch said his Democratic colleagues in the Senate were trying to dismiss the question about the constitutionality of the government forcing people to buy health insurance without presenting a coherent and defensible argument for their position that Congress can exercise this sweeping and novel power.When asked if any of his colleagues had made a coherent argument for the constitutionality of forcing people to buy health insurance, Hatch said, “Not one. Not one argument. In fact, they just dismiss it as though it’s not significant. But I’ll tell you this, a lot aren’t dismissing it. When we start having the federal government dictate to us what we have to purchase or buy without some commercial justifiable reason--you know, or 'activity,' which is the real key word here--we’ve lost our freedoms, and that means the federal government can do anything it wants to do to us.”When the health-care reform bill was being debated in the Finance Committee, Hatch offered an amendment that would have provided for expedited judicial review of certain provisions in the bill including the mandate that individuals buy health insurance. Senate Finance Chairman Max Baucus (D.-Mont.) ruled Hatch's amendment out of order, however, arguing that the issue properly belonged in the jurisdiction of the Judiciary Committee.When CNSNews.com asked Judiciary Chairman Patrick Leahy (D.-Vt.) where the Constitution authorizes Congress to force Americans to buy health insurance, Leahy would not directly answer the question, claiming that "nobody" questioned Congress's authority to do this. "We have plenty of authority. Are you saying there is no authority?" Leahy told CNSNews.com reporter Matt Cover. "Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that."House Speaker Nancy Pelosi was equally dismissive of the question of where the Constitution authorized Congress to force Americans to buy health insurance. When reporter Matt Cover asked her the question, she said: “Are you serious? Are you serious?”White House Spokesman Robert Gibbs similarly dismissed the issue without directly saying where the Constitution authorized the federal government to force people to buy health insurance. When CNSNews.com White House Correspondent Fred Lucas asked Gibbs to comment on the fact that some Republicans were questioning the constitutionality of forcing Americans to buy health insurance, Gibbs said: “I won't be confused as a constitutional scholar, but I don't believe there's a lot of--I don't believe there's a lot of case law that would demonstrate the veracity of what they're commentating on.”Hatch said that if Congress claimed the power to tell Americans what things they must buy there would be “no limit” to the power of the federal government over the lives of Americans.“There’s no limit,” said Hatch. “And this is a technical issue, but it’s an important technical, constitutional issue. I’ve raised it. A lot of people have said: Hey, you’re right. Some have said: Oh, you’re being extreme. I don’t think we’re being extreme. I think we’re being, we’re concerned about individual liberties and rights, and that’s what the Constitution protects, or at least should protect.” Here is a partial transcript of CNSNews.com's interview with Sen. Orrin Hatch (R.-Utah): Terry Jeffrey: Let me bring you to the constitutional issue, senator, which I know you brought up in the Finance Committee when the bill was being marked up. The Congressional Budget Office, back in 1994, when they were looking at Senator—then-First Lady--Hillary Clinton’s plan to create a universal health care plan, looked at the question of an individual mandate, which was then being proposed. They studied it, they came back and they said never in the history of the United States has the federal government ordered individual citizens to purchase any good or commodity. Sen. Orrin Hatch (R.-Utah): That’s right. Jeffrey: It had never happened. Does the United States Congress have the congressional authority to order individual Americans to buy health care? Hatch: I think there’s a real constitutional issue there. You know, the illustration they give all the time is: Well, states require people to buy auto insurance. Yeah, they do, if they want to drive. Jeffrey: That’s a state government. Hatch: Yeah, and if they want to drive, they have to buy automobile insurance. But here would be the first time where our government would demand that people buy something that they may or may not want. And, you know, if that’s the case, then we didn’t need a “Cash for Clunkers,” all we had to do is have the federal government say you all got to buy new cars, no matter how tough it is on you. You know, they could require you to buy anything. And that isn’t America. That’s not freedom. That’s not constitutionally sound. Now, there may be some gimmicky way that they can do this, but I can’t think of a gimmicky way that would be constitutionally justified. Jeffrey: One of our reporters at CNSNews.com, Matt Cover, asked House Majority Leader Steny Hoyer: Where in the Constitution is there language that authorizes the Congress to order Americans to buy health insurance? And Congressman Hoyer said it’s in the phrase “general welfare”--which occurs at the beginning of Article I, Section 8, before the enumerated powers of Congress. What do you think of Congressman Hoyer’s constitutional argument? Hatch: Well, keep in mind the General Welfare Clause hasn’t been used for years, except through the Commerce Clause--Article I, Section 8. And frankly the Commerce Clause affects, quote, “activities,” unquote. And, you know, the government telling you you have to buy health insurance, mandating that you have to buy health insurance, is not an activity. I mean, that’s telling you you got to do something you don’t want to do. Jeffrey: And you’re not doing. If you’re sitting at home in your living room in the state of not owning health insurance, you’re not engaged in any kind of commercial activity. You’re not trading with a foreign nation-- Hatch: There’s no way. That’s right. Jeffrey: --You’re not trading with an Indian tribe. You’re not trading across state lines. Hatch: Well, let’s put it this way: If that is held constitutional--for them to be able to tell us we have to purchase health insurance--then there is literally nothing that the federal government can’t force us to do. Nothing. Now, whether or not the states can is another issue. The states may be able to. But since that government is closer to the people, those state representatives know that their very political lives depend on not doing things like that to the people. Jeffrey: Have any of your Democratic colleagues presented a clear and coherent constitutional argument for why they think they can do this? Hatch: Not one. Not one argument. In fact, they just dismiss it as though it’s not significant. But I’ll tell you this, a lot aren’t dismissing it. When we start having the federal government dictate to us what we have to purchase or buy without some commercial justifiable reason--you know, or 'activity,' which is the real key word here--we’ve lost our freedoms, and that means the federal government can do anything it wants to do to us. Jeffrey: There’s no limit. Hatch: There’s no limit. And this is a technical issue, but it’s an important technical, constitutional issue. I’ve raised it. A lot of people have said: Hey, you’re right. Some have said: Oh, you’re being extreme. I don’t think we’re being extreme. I think we’re being, we’re concerned about individual liberties and rights, and that’s what the Constitution protects, or at least should protect.

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