Obamacare's Fundamental Flaw

The Left has always had an erratic relationship with the Constitution. Liberal judges are known for discovering constitutional rights that had eluded judges for centuries. That’s because some of those so-called rights, such as the right to privacy, have no basis in the text of the Constitution but rather somewhere in its “emanations” and “penumbras.”

 But the alleged right to privacy has its limits even among liberals. The Left’s judges routinely rule that the right protects abortion on demand, but its legislators have no qualms about extinguishing the right of citizens to make other private healthcare decisions free of government coercion.  

 While much of the healthcare debate has focused on arguments over policy, a more fundamental debate is taking place over whether the Democrats’ healthcare overhaul is even constitutional.

 There is nothing in the Constitution that allows the federal government to be involved in healthcare, and the loud affirmation of this fact may offer conservatives their best chance to pull the plug on Obamacare. It would be ironic if it is in the courts, liberals’ favorite venue for forcing social change, that the rule of law were restored and the personal freedom of the American people affirmed.

 The power to regulate each citizen’s health care is not listed in the Constitution among the federal government’s enumerated powers, and the 10th Amendment makes clear that any powers not specifically granted to Congress are reserved to the states.

 But among liberals, for whom it is an article of faith that government-run healthcare is a basic human right that no person of goodwill could oppose, any arguments about its constitutionality are irrelevant.

 When pressed to address constitutionality, liberals often point to the commerce clause. The Constitution grants Congress the power to regulate “commerce among the several states.” But that does not mean Congress can meddle in anything that affects economic activity. The Supreme Court has rejected the notion that the commerce clause allows Congress to regulate non-economic activities just because, somewhere down the road, they may have an effect on economic activity.  

 The most egregiously unconstitutional element of the health care legislation concerns the individual mandate, which requires each American to obtain health insurance or pay a penalty of up to $25,000 or one year in prison. The individual mandate is essential to the Left’s plan to impose government-run health care. Without it, because of the left’s insistence on barring insurance companies from denying coverage to people for pre-existing conditions, people would simply obtain insurance only when they have a need for medical care.  

 The individual mandate is a way to keep costs down, but there is not constitutional authorization for it. As Senator Orrin Hatch (R-UT) has said, “…here would be the first time where our [federal] government would demand that people buy something that they may or may not want…and…that’s not constitutionally sound.”  

 Back in 1994, during the Democrats’ last foray into healthcare reform, the Congressional Budget Office stated that compelling individuals to buy insurance would be “an unprecedented form of federal action” because “the government has never required people to buy any good or service as a condition of lawful residence in the U.S.”

 Liberals often liken the health insurance individual mandate to the law requiring all people who own automobiles to have auto insurance. But it’s a flawed argument. Only state governments, not the federal government, can require automobile owners to obtain auto insurance (and two states, Wisconsin and New Hampshire, don’t).

 Also, as legal scholars at the Heritage Foundation point out in a recent legal memorandum, “automobile insurance requirements impose a condition on the voluntary activity of driving; a health insurance mandate imposes a condition on life itself.”

 The Heritage memo, titled “Why the personal mandate to buy health insurance is unprecedented and unconstitutional,” also notes that states require drivers to maintain auto insurance only to cover injuries to others. “The mandate does not require drivers to insure themselves or their property against injury or damage. Thus the auto insurance requirement covers the dangers and liabilities posed by drivers to third parties only…”

 It would be an understatement to say that individual mandate advocates have struggled to defend its inclusion. In a series of interviews conducted by, Democrat after Democrat failed to give a coherent answer about where the Constitution authorized Congress to mandate that individuals buy health insurance.

 Hawaii Senator Daniel Akaka said he was “not aware” of the Constitution giving Congress the authority, while Senator Jack Reed (D-RI) said he’d “have to check the specific sections,” and Sen. Ben Nelson (D-NE) flatly admitted that he did not know.

 Senator Blanche Lincoln should have taken the Nelson route but instead opined, “Well, I Just think the Constitution charges Congress with the health and well-being of the people.” And Senate Judiciary Chairman Pat Leahy (D-VT) dismissed the question, insisting that “nobody” questioned Congress’ authority to require individual mandate.

 Senator Roland Burris (D-IL) said Congress authorization to impose an individual mandate could be found in the part of Constitution that authorizes the federal government to “provide for the health, welfare and the defense of the country.” But, as pointed out, “health” is not mentioned anywhere in the Constitution.

 Then there was House Speaker Nancy Pelosi, who simply responded “Are you serious? Are you serious?” By which she seemed to be saying, “Do you seriously think we progressives would allow constitutionality to get in the way of our half-century old goal of government-run health care?!”

 There are other constitutional problems with Obamacare. For instance, if the public option provides for abortion, many Americans will be compelled to subsidize other people’s abortions, which would infringe upon the First Amendment guarantee of religious freedom.

 And constitutional concerns exist over exempting some states from Obamacare’s provisions. In Harry Reid’s fire sale for votes, he essentially agreed that some states would bear the brunt of the economic burden of the health care monstrosity but not others. Presently state legal experts are examining whether the constitution can force such a burden upon them.

 Other constitutional issues are buried deep in the pages of the bill just now seeing the light of day. For example, in spite of recent Supreme Court decisions raising constitutional questions about racial set asides, Obamacare promises federal financial assistance to medical schools, but only if they have programs that serve “under-represented” groups based on race, sex, religion and sexual orientation.

 An unintended consequence of the health care debate may be that legislators on both sides of the isle are dusting off and reading their copies of the U.S. Constitution. Conservative members of Congress should resolve in the New Year to talk more often and more loudly about the constitutional arguments against Obamacare.

 If it passes, conservatives should test its constitutionality in the courts. It may well be that the jobs saved or created by the Obama Administration’s health care plan go to lawyers, not doctors.