ObamaCare is UnConstitutional: Counting the Ways Health Care is Unconstitutional

The Heritage Foundation explains why ObamaCare, as currently written by the U.S. House and Senate, is unconstitutional. After digesting this information, you will probably feel more at ease about the powers Congress is trying to pilfer.

Congressional Health Care is UnConstitutional

Assuming a bill is passed, and assuming the information so generously provided by the Heritage Foundation is sound, which I believe it is, then the legislation must get in front of the Supreme Court if we are to be rescued from the unconstitutional grasp of Congress...and their unlimited power in the future, once they have forced this upon us.

The argument that mandated health care is no different from mandated auto insurance is everywhere. It is the single most relied up argument among bloggers to support ObamaCare. That issue is addressed in 'D' below.

Those of you who read my blog know I sometimes take issues that are complex to me and cull them down in the form of a post. That's what I've done here. I encourage you to read the original or the many, many pertinent details I have omitted, but hopefully not misconstrued. My disclaimer is: read the original if you want to know you're getting it right.

From the Heritage Foundation, along with my conversation thrown in:

A)  The Constitution does not grant Congress the power to mandate that an individual enter into a contract with a private party or purchase a good or service. Nowhere is this in the Constitution, and contrary to the opinion of Congress, the power is not given under The Commerce Clause, as Nancy Pelosi claims. Remember this:

When Nancy Pelosi was asked where the Constitution authorized Congress to order Americans to buy health insurance, she dismissed the question by saying,

“Are you serious? Are you serious?”

According to CNSNews, her press spokesman said that this authority comes from Congress’s “constitutional power to regulate interstate commerce.”

Pelosi and others claim that the Commerce Clause "jurisprudence" leaves "no doubt" that the mandated insurance requirement is a constitutional exercise of that power. "They are wrong."

The Commerce Clause, set forth in Article I, section 8, grants Congress the authority:

"[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes."

The Congressional Research Service has acknowledged that the mandate for individuals to buy health insurance or be subject to a tax or fine, may not be constitutional:

...it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance.

Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.

The above is contained in a report by the Congressional Research Service, written by Jennifer Staman and Cynthia Brougher for Congress.

The Heritage Foundation points out that these words above: "it is a novel issue," means that it is "unprecedented." There is no previous legislation or judicial opinion to support this "unprecedented" legislation (mandate, demand on an individual person).

B) The only avenue for Congress to gain this power, is for the Supreme Court to create a new constitutional doctrine. Because the mandate is unprecedented, the Heritage Foundation believes it unlikely that the Supreme Court will "stretch the commerce power even further than it already has," "even under the most expansive readings" already given by the Supreme Court," this power does not fit into the "class of activity" needed to be constitutional.

C) According to the Supreme Court, "Congress has the power to regulate three categories of activity pursuant to the commerce power:"

(1) Congress may regulate the "channels of interstate or foreign commence". This includes the regulation of steamship, railroad, highway or aircraft transportation.

(2) Congress may regulate and protect "the destruction of aircraft, or persons or things in commerce. An example is "thefts from interstate shipments."

(3) Congress may regulate economic activities that "substantially affect interstate commerce.

Mandating individual health insurance must fall into one of the three categories of regulation above. The first two are not a possible fit, so the mandate must fall into (3) to be constitutional, and Congress is asserting that (3) is precisely the mechanism that gives them the power they want.

The Heritage Foundation says:

The Senate bill asserts (erroneously) that: "[t]he individual responsibility requirement...is commercial and economic in nature, and substantially affects interstate commerce.... The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.

The question of "what class of activity is Congress seeking to regulate?" must be answered, so to rely on (3) the mandating that you and I purchase health insurance, must be an economic activity that substantially "affects interstate commerce."

Significantly, the mandate imposed by the pending bills does not regulate or prohibit the economic activity of providing or administering health insurance.

Nor does it regulate or prohibit the economic activity of providing health care, whether by doctors, hospitals, pharmaceutical companies, or other entities engaged in the business of providing a medical good or service.

Indeed, the health care mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to "regulate" inactivity.

 Here is a tricky, but important part of this puzzle:

Proponents of the individual mandate are contending that, under its power to "regulate commerce...among the several states," Congress may regulate the doing of nothing at all! 

 You or I did not have health insurance for whatever our reasons - we did nothing at all, and Congress proposes to regulate our inactivity!

In other words, the statute purports to convert inactivity into a class of activity. By its own plain terms, the individual mandate provision regulates the absence of action. [Again, we have chosen not to buy health insurance - and by that choice, Congress says we have participated in an activity that affects interstate commerce!]

To uphold this power under its existing doctrine, the Court must conclude that an individual's failure to enter into a contract for health insurance is an activity that is "economic" in nature-- that is, it is part of a "class of activity" that "substantially affects interstate commerce." ...

 Although Congress may possibly regulate the health care industry or the health insurance industry in light of their substantial effect on interstate commerce, the individual mandate regulates the noneconomic inactivity of not purchasing a particular service or entering into a contract.

 Note this:

Never in this nation's history has the commerce power been used to require a person who does nothing to engage in economic activity. 

 A mandate to enter into a contract with an insurance company would be the first use of the Commerce Clause to universally mandate an activity by all citizens of the United States....

The health bill's individual mandate provision would have the unprecedented effect of subjecting an individual's decisions to federal control by virtue of the fact that the individual merely resides within the borders of the United States.

According to the Heritage Foundation, if Congress is allowed to get by with regulating and mandating this "class of inactivity," then they will have gained unlimited power:

Congress would have the unlimited power to regulate, prohibit, or mandate any or all activities in the United States. Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people.

Here are examples of how interestate commerce has not been used in the past:

Even in wartime, when the production of materiel is crucial to national survival, Congress has never claimed such a power.

For example, during World War II, no farmer was forced to grow food for the troops; no worker was forced to build tanks.

While the federal government encouraged the public to buy its bonds to finance the war effort, it never mandated they do so.

While Congress levied a military draft, it did so as necessary and proper to its enumerated power in Article I, sec. 8 "to raise and support armies," not its commerce power.

What Congress did not and cannot do during a wartime emergency, with national survival at stake, it cannot do in peacetime simply to avoid the political cost of raising taxes to pay for new government programs....

Simply because Congress can regulate wheat production under the Agricultural Adjustment Act does not entail that Congress can require every American to buy boxes of Shredded Wheat cereal on the grounds that, by not buying wheat cereal, non-consumers were adversely affecting the regulated wheat market.

Give Congress the power they are now seeking, and all of the above powers can be extended to them.

D) How about mandating that individuals buy car insurance? The argument that "a universal federal mandate to obtain health insurance is no different than a state requiring its licensed automobile drivers to have liability insurance for their injuries to others, is not a valid comparison.

...there are several important constitutional differences that render the comparison decidedly inapposite.

One difference is that in our republic, states have police powers that Congress does not have:

Thus, states may craft numerous regulations for the protection of their citizens which are beyond Congress' power.

The "level of insurance" required to operate within a specific state is granted by "a state' police power," "a completely different source of constitutional authority" that Congress cannot invoke.

Further:

(1) Auto insurance requirements impose a condition on the voluntary activity of driving

(2) A health insurance mandate imposes a condition on life itself [you exist and your life makes you available to mandated health care].

States do not require non-drivers, including passengers in cars with potentially bad drivers, to buy auto insurance liability policies--even though such a requirement undoubtedly would lower the auto insurance premiums for those who do drive.

The auto insurance requirement is linked to driving and to the possibility that bad driving may cause injuries to others, including passengers in the driver's car, not to those who benefit from roads generally.

(3) State auto insurance requirements are limited to those who drive on public roads.

Driving on government roads is a privilege--one easily distinguished from merely living. For those who choose to drive on public roads, the state can establish terms and conditions reasonably related to preventing injury to others.

These same rules do not extend to driving on private roads or property. Indeed, one may drive vehicles on private property without ever obtaining a state driver's license.

(4) A driver is required to provide insurance to cover the damage or injuries he/she may cause to others. The driver himself is not required to insure himself or his auto.

Thus, the auto insurance requirement covers the dangers and liabilities posed by drivers to third parties only, ...

...the driver remains free to assume the risk that she will injure herself, even if she is insolvent to pay for her own expenses.

E. An Unconstitutional Tax

Article I, section 8 of the U.S. Constitution delegates to Congress the power "To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States...."

Congress' "implied power to spend tax revenues" may not be legal but there are no precedents to limit their "spending power" to only those expenditures that are necessary and proper:"

Therefore, the courts may well allow Congress to use its taxing and spending powers to craft a general income tax sufficient to pay for health care insurance for more Americans.

They may also allow grants to states to encourage them to insure more Americans.

...they may allow Congress to create tax credits for individuals who pay for their own health insurance policies.

But just because Congress may use its powers of taxation in these ways does not mean that anything it decides to call a "tax" is constitutional.

Congress would have to take the political wrath taxpayers would reign down upon them if they instituted the taxes laid out above. And this is precisely why Congress is calling the fines and penalties they plan to levy against any citizen not purchasing health care, "shared responsibility penalties," and thereby funding the their new program without calling it a tax.

It is likely that the Supreme Court will find this effort to avoid political and fiscal accountability a pretextual assertion of Congress's taxation powers and therefore, unconstitutional.

Whether it is called a "responsibility penalty," a fine or a tax, it is unconstitutional because it is not a tax on income, but a tax on the person - which is known as a "capitation tax."

 ...the Constitution requires that capitation taxes be apportioned among the states on the basis of census population.

...the health care mandate tax must be assessed evenly based upon population, and not vary based upon factors such as the financial condition of the state's residents. A state with 5 percent of the population must therefore pay 5 percent of the tax, even if its residents are disproportionately wealthy or poor as compared with other states.

 But, the Heritage Foundation says it will be impossible to meet the constitutionality required, because:

...the mandate exempts individuals who are not lawfully present in the United States. But illegal aliens have been counted in the census,...

Failure to apportion the tax to include illegal immigrants would therefore be constitutionally fatal to the tax.

The mandate also excludes taxpayers with:

...income under 100 percent of the poverty line,

individuals for whom the required contribution would exceed 8 percent of their income,

religious objectors,

incarcerated individuals,

and anyone determined to have suffered a hardship regarding their capability to obtain coverage, as determined in the discretion of the Secretary of Health and Human Services. 

 The problem is, these exceptions work within an individual income tax, but the Constitution forbids "these distinctions in capitation or direct taxes," because they "would upset apportionment on the basis of census population...."

So there you have it. I hope this has supplied a few arguments for your liberal friends, if you have any - but then we seldom argue with them do we? We're usually too polite. Two bottomlines: (1) Obama Care is unconstitutional, and (2) who takes this to the Supreme Court for us, should it be necessary?


 Photo courtesy of DC Works for Us