There has been a lot of debate recently about healthcare reform and whether it should be done or not. Some of the hotly contested issues include: how much will it cost, who will be covered, will it be better for Americans in the long run, and what will happen to the quality of healthcare in this country if we do pass this bill. No doubt these are all important questions, but there is one question that is much more important but no one seems to be asking. IS IT CONSTITUTIONAL?
Our government is one of enumerated powers. That means that the powers of Congress are specifically listed in the Constitution. (Article 1, Section 8.) The reason the powers of Congress are enumerated the way they are is because our founding fathers believed in limited government. They believed that it was easier to list what a limited government can do than to list what it can’t do. For example, if our founding fathers had chosen to list what the government can’t do then the list would have to be exhaustive and anything that wasn’t in the list the government presumably would have the power to do. To avoid this problem the framers of the Constitution decided to list what the government could do; this list would be much shorter and anything that was not included in the list the government would not be able to do.
There are several power granting clauses in Article 1, Section 8 of the Constitution but none of them grants Congress the power to enact the legislation that it is attempting to enact. There are those out there however, who believe that Congress does have the authority to pass this healthcare bill. Some of the arguments that they have made are as follows:
(1) "Congress has the authority to promote the general welfare”. There are two problems with this argument. First, the “general welfare” clause is not contained in Art. 1, Sec. 8 but is contained in the preamble which is NOT a power granting clause. Second, even if the preamble were a power granting clause you cannot ignore the very next phrase which says “to secure the blessings of liberty to ourselves and our posterity.”
(2) "Congress has the authority to enact this legislation under the commerce clause." It is true that Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” But this bill doesn’t regulate commerce among the several states; it simply takes over control of healthcare. If Congress wanted to regulate commerce it could allow private companies to sell insurance across state lines. This Congress no doubt has the power to do.
Of course some people argue that this is not a "take over" of health care because Congress is only requiring people to purchase insurance from private companies. But this misses the point, it makes no difference whether Congress administers its own health care system or if they require people to buy private coverage. The constitutional question at issue here is whether Congress may require citizens to purchase insurance. There is no doubt that Congress has the authority under the Commerce Clause to prohibit certain items from being purchased or sold in interstate commerce. As the Court has said; the power to regulate interstate commerce is the power to restrict what flows through the channels of interstate commerce. This case, however, is distinguishable from prior cases because it does not involve a prohibition, but instead involves the imposition of an affirmative duty to purchase insurance. That is, Congress is attempting to force Americans to engage in interstate commerce. Forcing people to engage in interstate commerce is a power that Congress does not have.
(3) "Congress has the power to enact this bill under the necessary and proper clause." The necessary and proper clause allows Congress to enact legislation “which shall be necessary and proper for carrying into execution the foregoing powers” [referring to the enumerated powers in Art. 1, Sec. 8]. In this case Congress does not have the authority to enact this legislation under any of its enumerated powers so; therefore, it cannot be carrying into execution any of the “foregoing powers.”
What Congress is doing is a usurpation of power at the expense of your freedom.
"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. BUT WHEN A LONG TRAIN OF ABUSES AND USURPATIONS, PURSUING INVARIABLY THE SAME OBJECT EVINCES A DESIGN TO REDUCE THEM UNDER ABSOLUTE DESPOTISM, IT IS THEIR RIGHT, IT IS THEIR DUTY, TO THROW OFF SUCH GOVERNMENT, AND TO PROVIDE NEW GUARDS FOR THEIR FUTURE SECURITY."
Declaration of Independence
