Is the health care law unconstitutional?

An editorial in the Washington Post, no less, which supported the health care reform bill, admits that the lawsuits seeking to strike down the new law may have a case:

Just minutes after Tuesday’s signing ceremony, the constitutionality of the health insurance reform law came under fire. A coalition of attorneys general from 13 states filed suit in a northern Florida federal court; Virginia lodged a separate complaint, and other states may follow.

These challenges are not frivolous. The states argue that the individual mandate — forcing individuals to purchase health insurance — stretches and distorts Congress's constitutional power “to regulate Commerce . . . among the several states.” A person who declines to buy insurance is not engaged in interstate commerce and should therefore lie beyond the reach of Congress, they say.

This contrasts, in two ways, with a consumer who is forced to buy car insurance. First, states have power to regulate activities within their borders that the Constitution does not grant the federal government. Second, a consumer must choose to enter the car market; only then does a state place a condition on that choice by requiring insurance. If the courts acknowledge the legitimacy of the individual mandate, the states argue, the federal government’s power to order purchases of other products or services — or any number of other directives — would be unlimited.

via States argue the feds can’t force purchase of health insurance – washingtonpost.com.

To use an example I’ve heard, if the federal government can compel people to purchase health insurance, it should also be able to decide that it would be beneficial to the national economy to require everyone to buy a GM automobile.

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.

  • http://thirstytheologian.com David Kjos

    Is the health care law unconstitutional?

    The Tenth Amendment says so. But then, if we go by that, Congress would be left with … um …

  • http://thirstytheologian.com David Kjos

    Is the health care law unconstitutional?

    The Tenth Amendment says so. But then, if we go by that, Congress would be left with … um …

  • colliebear56

    Of course it’s unconstitutional. To further the GM car analogy, it’s like passing regulations that require GM, Chrysler and Ford to manufacture only one type of vehicle with the following specs: a hybrid crossover, 6-passenger w/ 50 per gal. And they can only come in metallic, mint-green paint.

    They pass a law that says every American has to buy one, and tells us we have lots of choices; we can buy from GM, Chrysler or Ford.

  • colliebear56

    Of course it’s unconstitutional. To further the GM car analogy, it’s like passing regulations that require GM, Chrysler and Ford to manufacture only one type of vehicle with the following specs: a hybrid crossover, 6-passenger w/ 50 per gal. And they can only come in metallic, mint-green paint.

    They pass a law that says every American has to buy one, and tells us we have lots of choices; we can buy from GM, Chrysler or Ford.

  • Winston Smith

    It’s constitutional if the Supreme Court says it’s constitutional.

    They will uphold the controversial provisions in a 5-4 decision, and proceed to explain their reasoning in a hundred-page opinion (as they usually do when they have to explain why up is down and white is black), and there will be partial concurrences and an angry dissent or two.

    Politics and raw judicial power cloaked in the language of the Constitution.

  • Winston Smith

    It’s constitutional if the Supreme Court says it’s constitutional.

    They will uphold the controversial provisions in a 5-4 decision, and proceed to explain their reasoning in a hundred-page opinion (as they usually do when they have to explain why up is down and white is black), and there will be partial concurrences and an angry dissent or two.

    Politics and raw judicial power cloaked in the language of the Constitution.

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

    Winston nails it. Is “Constitutional” what a Supreme Court beholden to government power says it is, or is it what our “lying eyes” say it is when we read the Constitution?

    I say the latter. If laws aren’t understandable to the average reader, we have a nation of judges, not laws.

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

    Winston nails it. Is “Constitutional” what a Supreme Court beholden to government power says it is, or is it what our “lying eyes” say it is when we read the Constitution?

    I say the latter. If laws aren’t understandable to the average reader, we have a nation of judges, not laws.

  • http://theoldadam.wordpress.com/ Steve Martin

    Since when do the new brand of Democrats with Marxist leanings care one wit about the Constitution?

    These folks with their totalitarian instincts will never stop inflicting their good intentions upon us until they control every aspect of our lives.

  • http://theoldadam.wordpress.com/ Steve Martin

    Since when do the new brand of Democrats with Marxist leanings care one wit about the Constitution?

    These folks with their totalitarian instincts will never stop inflicting their good intentions upon us until they control every aspect of our lives.

  • DonS

    If the decision of a single individual not to purchase health insurance is deemed to be one involving interstate commerce, giving the federal government the right to regulate and prohibit that action, then, truly, we will have knocked out the last vestige of federalism and the concept of a federal government having limited, enumerated powers.

    Alas, I am not optimistic that right will prevail.

  • DonS

    If the decision of a single individual not to purchase health insurance is deemed to be one involving interstate commerce, giving the federal government the right to regulate and prohibit that action, then, truly, we will have knocked out the last vestige of federalism and the concept of a federal government having limited, enumerated powers.

    Alas, I am not optimistic that right will prevail.

  • http://twitter.com/matthewmarkus Matthew Markus

    Actually, the 10th Amendment is a dead letter. I think that a challenge under the 13th Amendment guarantee against involuntary servitude would make for a stronger case.

    Health Care: The public option and compulsory insurance.

  • http://twitter.com/matthewmarkus Matthew Markus

    Actually, the 10th Amendment is a dead letter. I think that a challenge under the 13th Amendment guarantee against involuntary servitude would make for a stronger case.

    Health Care: The public option and compulsory insurance.

  • Cincinnatus

    Ultimately, the question will more than likely be irrelevant. Who knows whether the Supreme Court will even grant certiorari. In any case, conditioning citizenship upon the purchase of some product is problematic. There does, however, exist a single , solitary precedent for such a requirement: in 1792, a law mandating that all citizens purchase rifles for militia service was upheld by the courts. I can’t imagine such a precedent would be taken seriously by most, however.

  • Cincinnatus

    Ultimately, the question will more than likely be irrelevant. Who knows whether the Supreme Court will even grant certiorari. In any case, conditioning citizenship upon the purchase of some product is problematic. There does, however, exist a single , solitary precedent for such a requirement: in 1792, a law mandating that all citizens purchase rifles for militia service was upheld by the courts. I can’t imagine such a precedent would be taken seriously by most, however.


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