Of Course It’s Unconstitutional

By “it” I’m referring to the recently enacted health care legislation that requires all Americans, with a few exceptions, to buy health insurance or face a fine. With astonishing “end justifies the means” reasoning, a majority in Congress and the president set aside the oath they took to “preserve, protect, and defend the Constitution of the United States of America.” Some of them argue that the general welfare or interstate commerce clause provides the legal cover they need. Get real. I think they just didn’t see any other way to enact universal health care legislation.

Let me repeat what the legislation requires. You have to buy insurance whether you want to or not, whether you can afford it (in your opinion), and despite the fact that you might want to be self-insured because you are rich or young and healthy, or perhaps both. There is no enumerated power in the Constitution that allows Congress to make such a law. The 10th Amendment reserves powers not delegated to the United States by the Constitution to the states or to the people. Neither has ceded such a power back to Congress. No matter how tempting it is to say that universal health care is an important social goal and requiring health insurance for all is needed to make it work, these arguments don’t trump the Constitution. Allow me to make a somewhat circular argument. If the Constitution does allow Congress to require you to buy product X, is that the kind of constitution you want?

If mandatory health insurance is unconstitutional, then why have the attorneys general from only 13 states filed challenges in federal court? Why not all 50? In some cases politics outweighs constitutional sense. In Congress every yes vote came from the Democratic majority (plus the Senate’s two independents). No Republican voted aye. In other cases perhaps some attorneys general are tired of the debate and want to spend their energy figuring out how to best implement the bill in their state. It’s a done deal. While I think portions of the bill should be declared unconstitutional, the legislation will survive a legal challenge. It’s too big and too much time was spent on it for the courts to tell Congress to start over. Make no mistake—without requiring all Americans to buy health insurance, the legislation doesn’t hold water.

In Washington state, views on the legal challenge are especially political. Attorney General Rob McKenna (a Republican) joined the other states because he thinks it is paramount to resolve the central question of whether the legislation violates individual liberty. Governor Christine Gregoire (a Democrat) is in favor of the legislation because it will provide health insurance to more than a million previously uninsured Washingtonians. She’s criticized our AG and says he doesn’t represent her. What’s hard to believe is that Gregoire served as attorney general before being elected governor. You would think she would have the legal acumen to understand McKenna’s position.

Several analogies have been proposed as to why we aren’t (or are) on a slippery slope when the government can, by law, require you to buy a product. A common one is the laws requiring car insurance to operate a motor vehicle. The analogy breaks down because you don’t have to drive. Another is a hypothetical future situation where we are told what kind of car to buy. Again, even if this does happen, it’s likely you wouldn’t have to buy one even if the product choice were so restricted. In fact there is no good analogy. The reason is that something like this has never happened before. My closest analogy concerns voting. Even though the out-of-pocket cost to vote is trivial, if the government fined you for not voting, I think the outrage would be similar to the anger raised by the health care legislation.

Of course there are exceptions under the new law. One is for a religious conscience. This makes sense on constitutional grounds (don’t want to violate the 1st Amendment), but not on practical ones. How many first responders are going to be content to let faith and natural healing take over when a person with a religious-conscience objection gets bitten by a poisonous snake? In contrast the health care legislation makes sense on practical grounds, but not on constitutional ones.