Preface: On a message board I frequent (the Snider Board), there has been some discussion of late about the recently-passed so-called health care reform. Someone asked the question “How is it being called unconstitutional?” and I took a stab at answering it. That answer follows.
People have different perceptions of what is or is not constitutional. Some people believe that the Constitution explicitly lists everything the federal government is authorized to do, and thus if it is not listed (health insurance legislation, a census that asks for more than a count of people living at an address) then it is not constitutional. Others embrace a broader interpretation, using things like the “promote the general welfare” text from the preamble as justification for federal government involvement in these areas.
In my opinion, the best claims of unconstitutionality are related to the absence of any explicit reference to health insurance in the Constitution (or subsequent amendments) and the ninth and tenth amendments.
Ninth amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Thus a right to choose for yourself or your family health insurance would seem to me to belong to the people, not the government. In fact, if the Massachusetts plan requires all to have insurance as I’ve heard recently, I don’t know why this amendment couldn’t be used to rule it unconstitutional. There is quite a big step from regulating business for the common good and requiring private citizens to purchase a product (even one as intangible as insurance).
Tenth amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The history of health insurance in this country is that it is regulated by state governments, not the federal government. I believe that provides at least a de facto basis for a claim that health insurance regulation is not a power of the federal government. Note: The Supreme Court rarely if ever uses this amendment to rule anything unconstitutional, so I’m not holding my breath.
Regarding the preamble text: two phrases appear immediately next to each other. One is “provide for the common defence”, and the other is “promote the general welfare”. I have always found it interesting (in the context of those who would use the “promote the general welfare” phrase to justify something like health insurance reform by the federal government) that the Constitution says to *provide* *for* defense but to *promote* *general* welfare. The most appropriate definition I found for “provide” would be “take measures in preparation for”. “Promote” is most appropriately defined as “to advocate or urge on behalf of something or someone”. If the federal government was meant to provide things necessary for the general welfare of the people of the United States, why wouldn’t the Constitution say so? It had no problem using the word “provide” in the context of defense. Thus I believe the choice of “promote” in the context of welfare to be a deliberate effort to differentiate the concepts.
Finally, requiring all people to buy health insurance doesn’t seem to be an effective way to secure the blessings of liberty to ourselves or our posterity. Though I guess an argument could be made that it liberates us from crushing expense due to health care costs, but that just doesn’t feel to me to be the type of liberty they were aiming for.
Ultimately, there are exactly nine people that will have a say into whether or not this legislation is constitutional. In the meantime we all get to rant about how evil it is or how much of a blessing it is or sit back and watch all the wacky people on both sides. :)
The problem with using this argument is suddenly you are advocating that Medicare and public education are unconstitutional. My house has never caught on fire yet I pay for fire services. My question is why this draws the line. I am forced to pay car insurance and put my seatbelt on… Are those not infringements of my freedoms?
My point in this is where do you draw the line? If it’s federal government imposing its will why not call for the end of Medicare?
Oops, sorry David for taking so long to approve your comment. I get so few legitimate comments that I don’t check very often. To answer your comments:
I would say that in my opinion (worth exactly what your paying for it, obviously, since I’m not, nor will I ever be, a Supreme Court justice) Medicare and public education are unconstitutional from a federal perspective (ie, the 9th & 10th amendments leave those in the hands of individuals or states). The great majority of funding for public education is actually from the state or local level; very little comes from the federal government. Fire departments & police departments are also mostly funded from state and local revenue, and they are properly the domain of the state and/or locality, not the federal government. Any monies collected by the federal government and spent on those programs seems wrong to me. Fortunately for those who disagree with me, SCOTUS does not hold my view.
Car insurance is also not required by the federal government; it is a state by state issue, and I believe there are some states that still don’t require it. And even in those states that do require automobile liability insurance, you have a simple (though maybe not practical) solution if you don’t want to pay for it (namely, don’t own a vehicle).
To answer your final question: I have called for the federal government to end Medicare. I’ve done it on the air while hosting a talk show, so I’m relatively public on the issue. Politicians keep saying how we need to get a handle on medical expenses because of how much it is costing government, thus justifying health care reform. There are two flaws with that line of thought. One is that the legislation did virtually nothing to address the cost of health care, only the availability of insurance (and the end result of that is debatable; I think the legislation will push private health insurers out of business, making it less available). Two is that if medical expenses are too big a part of the federal budget, a simple solution is for the government to get out of the business of paying for medical expenses. Government involvement in just about anything seriously inflates the cost of that thing.
Anyway, thanks for the comments David, and sorry for how long it took to approve it. I wasn’t trying to hide from your questions, I promise. :)