But would the Health Care bill be constitutional?

That is a question that surely deserves consideration, doesn’t it? In the Washington Post, two attorneys, David B. Rivkin Jr. and Lee A. Casey, cite a number of Supreme Court precedents that would indicate that a law mandating that everyone purchase insurance would not pass constitutional muster. According to the rulings and the case law they cite, Congress has no authority under the much-invoked commerce clause to require private economic transactions. Nor can Congress use its taxing power–as has been proposed, to impose tax penalties on those who do not buy health insurance–as a way of regulating what it is not allowed to regulate under the commerce clause.

Though these attorneys have served in Republican administrations, they don’t seem to be raising a mere conservative objection. In fact, they say that the single-payer option probably WOULD be constitutional. They are simply pointing out constitutional and legal problems with the current insurance-based proposal.

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About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Matt C.

    Hm. This is actually the first time I’ve seen the constitutional question raised on this issue. I wonder, does anybody really care whether a piece of legislation is constitutional anymore? It’s a living document for many liberals anyways, making “violation” a difficult category to apply. Even for conservatives, though, there have been so many laws that have been seen as violations already without any action other than complaint. What does it matter at this point?

  • Matt C.

    Hm. This is actually the first time I’ve seen the constitutional question raised on this issue. I wonder, does anybody really care whether a piece of legislation is constitutional anymore? It’s a living document for many liberals anyways, making “violation” a difficult category to apply. Even for conservatives, though, there have been so many laws that have been seen as violations already without any action other than complaint. What does it matter at this point?

  • http://www.brandondutcher.blogspot.com Brandon Dutcher

    Joe Sobran’s maxim might be helpful here: “The U.S. Constitution poses no serious threat to our form of government.”

  • http://www.brandondutcher.blogspot.com Brandon Dutcher

    Joe Sobran’s maxim might be helpful here: “The U.S. Constitution poses no serious threat to our form of government.”

  • http://www.bikebubba.blogspot.com Bike Bubba

    But Medicare is effectivly single payer for seniors. Why hasn’t it been found to fail constitutional muster?

    I agree with the idea that the 10th Amendment precludes government involvement in healthcare this way, by the way. I just have to point out the practical reality that the courts don’t seem to be seeing it this way.

  • http://www.bikebubba.blogspot.com Bike Bubba

    But Medicare is effectivly single payer for seniors. Why hasn’t it been found to fail constitutional muster?

    I agree with the idea that the 10th Amendment precludes government involvement in healthcare this way, by the way. I just have to point out the practical reality that the courts don’t seem to be seeing it this way.

  • http://www.geneveith.com Veith

    Bike Bubba, as I understand the attorneys, a single payer plan MIGHT be constitutional. But in the case law and precedents they cite, Congress cannot make you buy a particular product or spend your money in a way the government dictates (except for paying taxes). The constitutional issue is with mandating that everyone buy insurance.

  • http://www.geneveith.com Veith

    Bike Bubba, as I understand the attorneys, a single payer plan MIGHT be constitutional. But in the case law and precedents they cite, Congress cannot make you buy a particular product or spend your money in a way the government dictates (except for paying taxes). The constitutional issue is with mandating that everyone buy insurance.

  • http://mesamike.org Mike Westfall

    It’s not unconstitutional until the Supreme Court says it’s unconstitutional. What’s actually written in the Constitution is of little relevance these days.

  • http://mesamike.org Mike Westfall

    It’s not unconstitutional until the Supreme Court says it’s unconstitutional. What’s actually written in the Constitution is of little relevance these days.

  • DonS

    I think the argument is right. But, unfortunately, initially in the 1930′s, and then, finally, in the 1960′s, we put to rest the notion of a limited federal government. The only governmental action we seemingly find to be unconstitutional now is the attempt to put restrictions on pornography. Everything else is fair game, including the squelching of 1st Amendment free speech through draconian campaign finance laws like McCain Feingold. I cannot see any court striking down a health insurance mandate on constitutional grounds. Of course, as I have posted previously, I also cannot see any way that the government could possibly enforce such a mandate.

  • DonS

    I think the argument is right. But, unfortunately, initially in the 1930′s, and then, finally, in the 1960′s, we put to rest the notion of a limited federal government. The only governmental action we seemingly find to be unconstitutional now is the attempt to put restrictions on pornography. Everything else is fair game, including the squelching of 1st Amendment free speech through draconian campaign finance laws like McCain Feingold. I cannot see any court striking down a health insurance mandate on constitutional grounds. Of course, as I have posted previously, I also cannot see any way that the government could possibly enforce such a mandate.

  • DonS

    In comment #7, it should read: “on pornography and abortion”.

  • DonS

    In comment #7, it should read: “on pornography and abortion”.

  • http://www.redeemedrambling.blogspot.com/ John

    This is the ‘big duh’ question, but really, since when has constitutionality been an issue?

  • http://www.redeemedrambling.blogspot.com/ John

    This is the ‘big duh’ question, but really, since when has constitutionality been an issue?


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