Health Care Reform and the Constitution

It is amazing to hear so many politicians making proposals in both the House and the Senate regarding health care reform without even a passing nod to the Constitutional authority of Congress to enact such legislation.  I know the idea of Federalism and the Constitution must seem quaint and old fashioned to many of them when they are doing the “right” thing and being modern and progressive (liberal) with the ambitious plans proffered.   I suppose they feel that you can’t a little thing like the law stand in the way of an expansion of government power and taking care of the little people.

We do the dangerous act of looking at the Constitution.  I would like someone to point to the section of the Constitution that grants Congress the power to regulate any kind of insurance.  If you are referring to the “general welfare” phrase of section 8, Article One I would postulate that that is the refuge of all who have no arugment.  The Federalist papers make it clear that such words to not empower the Congress to pass anything it wants.  There are enumerated powers and powers left to the States.  Many areas of law have been left to the States under the Constitution.  Real estate law is controlled by the States.  There is no federal law regarding real estate.  The various States have different appproaches to mortgages and deed of trust for example.  Marriage and family law has been left to the States.  The requirement for marriage and divorce have been different in the States from our inception.  Likewise all insurance law has been governed by State law.  Your home insurance, car insurance, umbrella liability policy and the like are all creatures of and regulated by your home  State.   These are only some of the more common examples of areas left exclusively to State law. 

Those matters are left to State law because of the 9th and 10th amendments.   Please read your copy of the Constitution.  If you don’t have one shame on you.  You can get one easily enough.  The Tenth Amendment in particular makes it plain that any powers not specifically granted to the Congress are reserved to the States.  Those specific powers are set out in Article One.  The States have controlled the insurance industry from our inception as a nation.  Now Congress is proposing to completely ignore the Tenth Amendment and write Federal law that will supercede State laws and regulations.  The States have always had the right to enter into compacts with each other.  They could do that now if they wish to regarding health insurance.  The proposals on tap will establish a national system of health insurance and importantly health insurance contract law.    Your health insurance policy in Vermont does not affect interstate commerce in the slightest anymore than the health treatment you seek to obtain.  The interstate commerce clause should not be held to  include health insurance or health reform.  The Supreme Court a couple of years ago finally pushed back on the ever expanding interstate commerce clause as a justification for any law passed.   They did that in the case involving the guns on school yards.  A legitimate concern but one left to the wisdom of each State.  My having a hand gun on a school yard could not concievably affect interstate commerce but  Congress said it did–if you push a ridiculous argument too far its inanity becomes apparent even to the intellectually challenged.

Next we come to the real puzzeler about the mandate that everyone must buy health insurance on pain of penalty by taxation and criminal proceedings.  You may recall that was one of the matters that people revolted against with Hillary-Care 15 years ago.  They criminal provisions in that one also.  Here they will be requiring you to buy insurance whether you want it or not.  The penalty the guy in the White House refuses to acknowledge is a tax will be paid through the IRS and failure to pay will be enforced with fines up to $25,000.00 and prison up to one year.  That is a tax and it is a crime if you don’t adhere to Government, Inc.’s mandate.   First, where in the Constitution does Congress get the authority to require that you buy ANY product or service?  I am waiting for an answer to that one.   Will Congress also have the power to require that you make all future loans for a house through Fannie or Freddie so their financial positions will be shored up?  Will Congress require you hire a CPA to prepare your tax return?  How about buying a car.  Can Congress mandate that we buy GMs or if not then how about a demand that all auto financing goes through GMAC  since the government owns that now after its arbitrary takeover last spring.   Just imagine Congress thinks it has the power to require you to buy something, it doesn’t matter what the product or service is.  Really think about that.  It would be the greatest usurpation of power by any Congress since our founding and will open the floodgates to rule of the mob rather than a rule of law.

There are other Constitutional challenges that can be made and I sure hope will be made to the health care reform.  If most of us really want it, it can happen through the States and with respect for our Federal system of government.  Whatever we do should be done according to law.   Our Federal system is flexible and the States know the needs of their people.  They can form any compact they want to improve our health care system and health insurance delivery.  Let’s not become some third world entity that rules by dictat, decree and fiat from the elites in ivory towers.

“There is no nonsense so arrant that it cannot be made the creed of the vast majority by adequate governmental action.”  Bertrand Russel


1 Comment

Filed under business, Economics, government, law, Socialized Medicine

One response to “Health Care Reform and the Constitution

  1. Letting the state governments have a role in health-care legislation risks capture or veto by the industry, yet consolidation at the US level is inconsistent with a Union that stretches over a continent. There is a way out of this dilemma. See

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