For lawyers of a certain age – the current president probably included – the first taste of constitutional law likely came from the old television cartoon “School House Rocks,” which introduced budding constitutional scholars to federal powers through the cartoon “I’m Just a Bill.” The cartoon’s Mr. Bill instructed us: “When I started, I wasn’t even a bill. Some folks … called their local congressman and he said, ‘You’re right, there oughta be a law.’"
I thought about this cartoon when reading about the constitutional challenges to healthcare reform legislation as they pit the “enumerated powers” constitutionalists against the “there oughta be a law” constitutionalists.
The White House press secretary has written off these constitutional challenges by over a dozen state attorneys general as “frivolous.” There is nothing frivolous about these suits. They seek to answer a fundamental question as yet unanswered: “What constitutional provision gave Congress the authority to pass an unprecedented law requiring that every American purchase a product from a private company?”
When questioned about Congress’ authority, Sen. Patrick Leahy (D.-Vt.) asserted, “We have plenty of authority.” House Speaker Nancy Pelosi responded incredulously: “Are you serious?” They seem to have a view of congressional authority like the cartoon congressman: “There oughta be a law.”
Unfortunately, just because there oughta be a law, doesn’t mean that the Congress has the authority to enact one. Congress has always been a legislative body of limited authority. Congress has historically relied largely on three powers: the power to tax, the power to spend and the power to “regulate Commerce … among the several States.”
But what enumerated constitutional power gives Congress the authority to pass a law requiring every American to buy health insurance? The Commerce Clause? In a breezy few paragraphs of the bill—Section 1501—Congress makes a “finding” that because two trillion plus dollars are spent each year on healthcare, Congress can require everyone buy health insurance because such a requirement “is commercial in nature and substantially affects interstate commerce.”
Huh? How can people who are consciously not engaging in commerce—i.e., not buying health insurance—be said to be engaging in commerce? Under this logic, what prevents the Congress from compelling me to join a health club? Or buy green vegetables? Even the Congressional Research Service concluded that the mandate goes beyond the bounds of the commerce clause.
Left without a Commerce Clause hook, the back-up plan is for Congress to argue that the mandate is just a tax, requiring you to buy health insurance because Congress has the power to tax. Again, though, the use of a penalty tax to enforce personal behavior is unprecedented. Can Congress now tax people who don’t exercise 30 minutes a day? Or whose body mass index is above average?
There oughta be a law alright, but the Constitution doesn’t empower the Congress to compel you to do something lest you be taxed. If upheld, it’s a frightening precedent.
The state attorneys general raise profound legal questions about the limits of congressional power. The Supreme Court has confirmed the limits of congressional power in recent cases involving gun laws and “hate crimes” laws. The statutes the court overruled were seen by many as doing good things—reducing gun violence and violence against women. But just because it oughta be a law doesn’t mean the Congress has the authority to pass one. That includes the health insurance mandate.
Like it or not our founders gave us a federal government of limited and enumerated powers. The founders recognized that liberty could not be assured if a national legislature could make laws on any subject of their choosing, no matter how well intentioned. That is what these state attorneys general are arguing and that is why these important constitutional challenges need to be heard.