And the good senators in the Democratic-controlled state senate of the Commonwealth of Virginia just passed it. That is, they passed a measure to make it illegal to require individuals to purchase health insurance. Talk about an in-your-face response to the proposed federal mandate I’ve talked about before. And Virginia is not alone – similar measures are pending in at least 29 other state legislatures. That seems like a sane response from states increasingly worried about the federal government encroaching on their sovereignty.
Now, we can argue about whether such state measures are merely symbolic – i.e., is Virginia’s senate just whistling in the dark because a national takeover of healthcare insurance will preempt any contrary state measures? Virginia says it’s trying to establish legal “standing” for itself to join a lawsuit with other states against the federal government over any healthcare bill that comes out of Congress.
I’m not so much immediately interested in whether such measures as Virginia’s are constitutionally effective when the dust clears from litigation, as I am in the non-partisan phenomenon of states rising up like Tea Partiers to draw a line in the sand to say “NO” to another enormous expansion of the federal government’s reach.
Rich Lowry at NRO has written an intriguing essay about all this entitled “How Big Government Became a Cultural Issue.” He thinks that at stake in the stunning Scott Brown election “wasn’t just a grab-bag of fiscal issues, but the meaning of the country – the ultimate cultural issue.”
If the“healthcare reform” bills passed by the Senate and House are now mortally wounded, I won’t mourn for them.
Besides, if we nationalize healthcare, where will Canadians go for their surgeries?
Question: what constitutional provision do you think grants Congress the right to pass a law forcing everyone to buy personal health insurance?
Senator Landrieu (D -LA): “I’ll leave that up to the constitutional lawyers on our staff.”
Random note of interest: the healthcare bill promises $100 million in federal monies to only one state * that qualifies as suffering a “recent disaster” – Louisiana. Um, that’s where Landrieu lives. Do I have to spell it out for you?
If you’re picking up this issue of congressional authority for the first time, check out my last post on this issue and the links contained in it.
H/T to CNSNews.com for the continuing series.
*UPDATE: How did I miss THIS! It’s $300 million, not $100 million.
Without the healthcare bill’s current provisions forcing everyone to purchase health insurance, the cost to the taxpayer of the new law would skyrocket even further than the projected $848 billion, making the political chances for passage of this big-government monstrosity even more remote.
As I’ve noted before (here, here, here, here and here) the Dems have had some difficulty pointing to the constitutional provision that gives them the authority to force people to engage in an economic activity just because they’re alive and kicking. Usually they end up with either the Commerce Clause or their taxing authority under the “enumerated powers” provisions of Article I, Section 8.
In a very detailed analysis published by The Heritage Foundation, Professor Randy Barnett, Nathaniel Stewart and Todd F. Gaziano explain why the bill’s mandate that all must purchase a health insurance policy is unconstitutional and entirely unprecedented. The executive summary is pretty readable, and for the legal detail-oriented types, the main body of the paper is here.
For instance, the paper addresses the usual liberal argument that the healthcare bill’s mandate is no different than requiring drivers to purchase auto insurance. Actually, there are 4 reasons Barnett, et al, give for why it is very different:
- States require driver insurance. State authority is much greater than federal authority in terms of constitutionally-granted powers.
- Auto insurance requirements impose a condition on the voluntary act of driving; a health insurance mandate imposes a condition on life itself.
- State auto insurance requirements are limited to those who drive on public roads – constructed, owned and maintained by the government. What a government can regulate on its property is much more extensive than what it can regulate in terms of private behavior.
- Auto insurance laws only require drivers to insure injuries to others, while allowing the driver to assume the risk of injury to himself.
We should be dealing with tort reform, allowing interstate competition among insurance companies, and solve the thorny issue of pre-existing conditions. These are the issues that can cut costs immediately and get more people covered who want to be covered.
This time it’s Sen. Akaka (D – HI) Again, CNSNews.com must consider this ongoing line of inquiry akin to shooting fish in a barrel. Bless his compassionate heart, Akaka says that Congress can make you purchase health insurance because they’re just trying to “help citizens in our country to live a good life…”
If that’s all the constitutional justification that Congress needs to do anything, we’re all doomed. Doomed.
Hint to Dems: When all else fails, use the Commerce Clause like Congress always does when it doesn’t know what else to use. That doesn’t apply, either, but it’s better than admitting you don’t know or, what’s worse, admitting that you have no constitutional authority to do what you’re doing.
It is funny enough that the Dems who want to force healthcare reform on the American public can’t come up with a correct answer as to what constitutional provision justifies it. (See here, here and here.) But now, the laugh-meter just maxed out at the results of the latest Gallup poll which shows that for the first time, a majority of Americans don’t think it is the federal government’s responsibility either. Gallup reaches for the meaning of this shift in public opinion:
The reason behind this shift is unknown. Certainly the federal government’s role in the nation’s healthcare system has been widely and vigorously debated over the last several months, including much focus on the “public option.” These data suggest that one result of the debate has been a net decrease in Americans’ agreement that ensuring all Americans have healthcare coverage is an appropriate role for the federal government.
I think Gallup’s “guess” is spot on. Americans are usually overly willing to let Congress get involved anywhere it wants to, at least until the point when the public debate educates them enough to say “Whoa – hold on. Maybe that’s not such a good idea after all.” I think the liberals in Washington already intuitively recognize this fact. That’s why we were told that the stimulus bill just had to be passed immediately OR ELSE. Or back in August (was it that long ago?) that we were told that healthcare reform had to be passed immediately OR ELSE? At the time we thought “OR ELSE” meant that bad things would suddenly start happening overnight.
I’m beginning to realize that the real meaning of “OR ELSE” is that liberals are afraid the American public might get enough facts in hand to object to the latest government takeover. That’s the kind of “OR ELSE” we could use some more of.
I’m starting to really love the ongoing CNSNews.com series that questions Senators and Representatives about the constitutional provision that justifies forcing people to buy health insurance. My prior posts on this subject are here and here.
The latest victim of CNS’s straightforward question is Senator Jack Reed (D – RI), who is on one of the Senate committees that actually drafted one version of healthcare reform legislation. His response:
“Let me see,” said Reed. “I would have to check the specific sections, so I’ll have to get back to you on the specific section.”
Me – Funny how Democrats’ total lack of preparedness for this question never gets old. Back to Reed:
“But it is not unusual that the Congress has required individuals to do things, like sign up for the draft and do many other things too, which I don’t think are explicitly contained [in the Constitution]. It gives Congress a right to raise an army, but it doesn’t say you can take people and draft them. But since that was something necessary for the functioning of the government over the past several years, the practice on the books, it’s been recognized, the authority to do that.”
Except that if the Constitution explicitly gives Congress the right to raise an army (Art I, Sec. 8, clause 12), then the Necessary and Proper Clause gives Congress the authority to initiate a draft. I’m still waiting for a Democrat to cite a constitutional provision that gives it the right to interject itself into healthcare, let alone force you to buy a good or service like insurance.
And so the game continues. I’m loving it.
My first post on this is here. I made fun of Speaker Pelosi’s and Senator Leahy’s attempts to answer reporters’ questions here. Despite Pelosi’s and Leahy’s harrumphing and non-answer answers, the issue will not go away, I’m please to report.
Professor Althouse notes that forcing people to buy insurance just as a condition of walking around and taking up space would be unprecedented, but she says the argument that the Commerce Clause gives Congress sufficient authority to pass the bill is, even if true, only half of the discussion:
“…[T]he point is that it’s not enough for Congress to have an enumerated power to pass a law. It must also avoid violating individual rights.”
She doesn’t specify what “individual rights” she might be thinking of. That might be an interesting discussion all by itself. But she doesn’t like the Commerce Clause justification anyway. She argues that the Commerce Clause only gives Congress the authority to regulate activity, not inactivity:
“In this new case (of mandating that individuals must purchase insurance), we’d have Congress regulating people for their inaction. What other case is like that? Congress can ‘regulate activities that substantially affect interstate commerce.’ Where’s the activity? It’s inactivity!”
Senator Orrin Hatch is a lawyer, a member of the Senate Judiciary Committee, and no slouch on constitutional issues. He doesn’t think the “individual mandate” – the requirement to purchase insurance – is constitutional either. He talks about this potential intrusion of government into our personal lives here.
Ken Klukowski of the American Civil Rights Union doesn’t mince any words here.
We’ve been told that the individual mandate is the key to the economic viability of Obamacare. What happens if the mandate is struck down by the courts 3 years into the new healthcare regime?
Sometimes, when I’ve failed to respond to a coworker’s email and I’m called out on it, I’ll say, “Oh, shoot. I wrote the email in my head but never sent it.”
Anyway.
Remember when the President told a joint session of Congress that “under our plan, no federal dollars will be used to fund abortions”? And remember how we were like—ohmygoodnessdidhejustsaythat? Because it sounded like great news. ::: cue the trumpets :::
Well, he took a page out of my book and apparently wrote a health care proposal in his head and never produced it. And, according to the president, that’s the bill in which no federal dollars will be used to fund abortions. Get it?
Because when Democrat Congressman Bart Stupak called the president after the joint session speech to explain to Obama that—ahem—the House bill actually did include federal funding for abortions, the president explained that he wasn’t talking about the House bill. He was talking about his own plan.
What plan? The plan that he hasn’t produced yet. The one we haven’t seen. The one that’s nowhere to be found. The one that’s apparently different from the 5 other versions that House and Senate committees have considered?
So, Mr. President, if you really do have your *own* health care proposal that specifically excludes federal funding of abortion, we’d love to see it.
No, says a couple of well-known attorneys in this Washington Post piece. Our Constitution grants limited, enumerated powers to Congress to legislate in only a handful of areas. Since around the time of FDR’s New Deal, however, we’ve gotten used to Congress taking advantage of the Constitution’s Commerce Clause to legislate everything from the type of light bulbs we use to the miles per gallon our cars must achieve. But requiring me to purchase insurance just because I’m walking around and taking up space? Attorneys Casey and Rivken argue persuasively that that scenario doesn’t fit under any of the Supreme Court’s expansive interpretations of the Commerce Clause, nor under Congress’ taxing power.
The current healthcare bill under debate, H.R. 3200, seems to be (hopefully) dying its own death by popular demand. But should Congress succeed in pushing it through anyway, it’s nice to know that it may not survive a court challenge.
(Update: Professor Adler is unconvinced but sees other constitutional problems.)
More and more lately we’re getting letters from people disheartened or confused by misleading information they’ve received from their U.S. representative or senators on any number of issues. (See this doozy from Sen. Michael Bennet).
Or they can’t get through to their lawmakers’ offices because “voicemail boxes are full.”
Or a Congressman’s staff member, “was rude to me” or “hung up on me” or “didn’t take down my name.” (Note: thanks to all who tell us their stories like this–keep ‘em coming!)
But no! That cannot be true! Your elected officials want to hear from you, right?
Wrong.
They NEED to hear from you. Even when they don’t want to–a la the latest healthcare townhall meetings where opponents of the Dems’ healthcare plan have literally been shoved and slapped out of public meetings allegedly designed to “hear from the people.” (Watch our latest update on how to approach these meetings).
So people, what do good Americans do when their elected officials ignore, lie to or bully them?
Here’s a hint: November 2010.
I repeat: November 2010.
