Is health care overhaul constitutional?


The Constitution: Does it matter anymore? Apparently not.

Now, there's a question that seems to have escaped debate. It is so much taken for granted that it is that when House Speaker Nancy Pelosi was asked about her plan's constitutionality, her reply was essentially, "Are you serious?"

Well, some folks may not take the Constitutional seriously, but a lot of us do. And this is more than an academic question. It was raised quite well in this story. Here's an excerpt:

Randy Barnett, a professor at Georgetown University Law Center, asks, "Where in the [Constitution] is the power to mandate that individuals buy health insurance?" His answer: Nowhere.

"The business of providing health insurance is now an entirely intrastate activity" beyond the regulatory sway of the federal government, he said.

 Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an Aug. 22 column in The Washington Post that Congress has no constitutional power to tell people what they must buy.

"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," they said.

Can Congress order every American to buy insurance? It's a question that I raised early on, and none of the health overhaul advocates seem to want to address it. But if they don't do it now, it surely will be addressed in the courts and (here we go again) it will be addressed and settled by the U.S. Supreme Court


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  • Of course health care isn't in the constitution. Comprehensive health care didn't exist until a 150 years after it was signed. This seems like a counter productive issue to raise. It doesn't say in the constitution that every driver must have car insurance, but if you get plowed into don't you think you might want that other driver to be able to cover the damage? My point is, the constitution is a frame work, not meant to be taken literally in every instance. The federal government is trying to enact POSITIVE change here. Questions like this are posed by people who don't want to see it because of some hidden agenda.

  • Depends on specific things in the bill. However, considering that most anything Congress enacts that costs money comes either within "spending for the general welfare," which isn't restricted, or the Commerce Clause (which sweeps so far that growing mary jane in your back yard affects Commerce, and according to the Supreme Court may be regulated by the feds), I really doubt that there is much of any constitutional law issue raised here. Remember, also what the President's prior part time job was...Lecturer of Constitutional Law at the University of Chicago. I wouldn't assume that he hasn't figured out the technicalities.

  • I don't believe we start with the Constitution to address your question. We start with the human heart. Is health care a human right? If it is, it's the job of national constitution to accommodate it. Virtually every advanced society in the world has done so. Is our tradition of cowboy capitalism so absolute that we have no moral responsibility here? Aren't nations best measured not by the money they make but the citizens they enhance

  • In reply to jackspatafora:

    I certainly don't go along with that. There is still the 10th Amendment, which means that Congress only has the powers delegated by the Constitution, all others belong to the states and the people. The Constitution doesn't say that any social policy favored by a commenter to a blog is within it.

    However, as I and Crazy Liberal pointed out, this does appear to come within the Commerce power.

  • In reply to jackspatafora:

    Sorry guys -- you're missing my point. By fixating on the Constitution and the laws and the clauses, you sidestep the core morality of the issue. Simple question: In addressing the "general welfare" of the people, does our system of government have an obligation to the health of its citizenry, just as it does for their protection from enemies, their safety from crime, their need for an education, etc etc? Yes or no & why?

  • In reply to jackspatafora:

    You basically are missing the point. The Supreme Court has frequently said (although not always done) that it does not pass on the social utility of legislation, but its constitutionality. The Declaration of Independence does not grant any legal rights.

    For that matter, most of the things you describe are functions of state government, such as protecting us from crime that does not implicate Commerce (hence, when defrauding someone, don't use the phone or Internet). Once could argue that with regard to health, the fed's only obligation is to stop the spread of communicable disease.

    In that we are fixating on the Constitution, that was the title of this piece.

  • In reply to jackspatafora:

    When you stand on the grounds of the Constitution, it's sometimes a little shaky. Consider the historic fact that this same Constitution allowed and codified the immorality of slavery for almost 100 years. When the 14th amendment changed that, the Constitution grew more morally correct. Do we need another amendment to make it constitutional to recognize the moral imperative of health care when we talk about "the welfare of the people?"

  • In reply to jackspatafora:

    Then have your revolution, or seek an amendment imposing your social view. As we said before, there is no need for an amendment in this case given the commerce power, but this country can't be run by the dictates of commenters to blogs instead of by law.

  • In reply to jackspatafora:

    Yes, yes, of course, a nation of laws not blogs. But why such extreme terms like "revolution" and "social views?" If you believe the constitutional reference to preserving the General Welfare excludes the right to address the health of the people, then your sense of welfare is far narrower and more antiseptic than mine.

    You don't mind addressing the need for protection from enemies, so why then is illness not an enemy too? If it is, isn't it the moral obligation of a government to address it in the same way they do when funding planes and tanks for our protection. I grant you all kinds of constitutional arguments can be raised here, but I assert it all has to begin with the question: Is it a citizens right to look to its government for whatever protection it can provide against illness?

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