Why is the Health Care Law Unconstitutional?

Since the passage of the health care law on Sunday, a lot of us have challenged its constitutionality. Even before it was passed we suggested that it would violate the constitution. But since it’s passage I have seen a lot of friends and family who support the law say they don’t understand why we think it is unconstitutional. They often cite the “general welfare clause” of the constitution and laws that require automobile insurance to justify the law under the constitution.

Up front let me say, as I have before, that the current health care system is the pits, unsustainable, and that insurance companies are corrupt. That insurance coverage is intertwined with your specific employer, that it is so much more expensive for individuals, that people are denied coverage because of preexisting conditions, and that we pay for routine care through insurance claims (which is like paying for gas for your car through auto insurance claims), are all terrible, illogical aspects of what we currently have. It needs to be overhauled.

That said, a benevolent king could easily use his sweeping powers to fix the system and provide health care for all in the most efficient and timely manner. But the dangers of establishing a monarchy would far outweigh the advantage of the universal health care he could provide. That is why in overhauling health care we need to make sure that it happens in a way that is consistent with the constitution and correct principles of just government.

The Constitution enumerates limited realms over which the National government has power. There are explicit powers in the constitution, and then there are implied powers which are accepted because without them the national government wouldn’t be able to exercise the stated powers.

A law or action by the national government is constitutional if it is within these enumerated or implied powers. If it oversteps those powers, then the law should be invalidated by the supreme court.

The health care law mandates that all people in the nation purchase insurance whether they want it or not. Supporters often point to mandatory automobile insurance laws as a parallel example.

Automobile insurance is NOT required by national law. It is the individual states who require automobile insurance, and the requirements vary widely from state to state. That is a crucial distinction. If the national government tried to require auto insurance, that too would be unconstitutional. Additionally even at the state level they also do not require all citizens to buy auto insurance. It is only a requirement if you want to get a driver’s license. Driving is a privilege and not a right. Those who do not want to drive are not required to have insurance. If a state required all citizens to buy insurance, whether they drive a car or not, that could arguably be unconstitutional too.

The health care law, unlike the auto insurance laws, is a national law and it requires everyone to buy insurance whether they want it or not.

So with health care we have to ask where in the constitution the national government derives its power to regulate health care and to force citizens to buy health insurance even if they don’t want it?

Supporters point to the ‘General Welfare” clause of the constitution.

The “General Welfare” clause is part of the preamble of the constitution, not the enumerated powers. The preamble states the objectives that they intend to accomplish through the powers and structures that follow. It does not grant any powers itself. The objectives are:

To form a more perfect union
To establish justice
To insure domestic tranquility
To provide for the common defense
To promote the general welfare
To secure the blessings of liberty to ourselves and our posterity

Each of these objectives is balanced and circumscribed by the others. The objective to promote general welfare does not trump the objective of securing our liberty and that of our posterity. The specific verbs used are also important. One objective is to “provide” common defense. Another is to “secure” liberty. But it does not say “provide” or “secure” the general welfare. It says “promote” the general welfare.

After the preamble, the articles of the constitution establish a system that the authors believed would correctly balance and accomplish these objectives. Has it worked perfectly? No. But it provided a process by which the structure could be amended when it wasn’t working correctly. If the constitution is not working, it should be amended. Otherwise, the government must operate within its parameters.

So the health care bill cannot be reasonably justified by the General Welfare clause.

So how else might it be constitutional?

Originally the Bill of Rights only applied to the national and not the state governments, but the courts have used the due process clause of the 14th amendment to allow the national government to invalidate state laws in order to protect individual natural rights and penumbral rights implied by those natural rights. So if health care is a right, then the national government might be able to justify the health care bill through the 14th amendment. However, that health care is a “right” is highly debatable in general, and completely inconsistent with the understanding of rights employed by the founders. See Is Health Care A Right? . If it is a right then the constitution should have to be amended to include it since under the current formulation it is not. So it is highly unlikely that it is constitutional through the 14th amendment.

Finally, the constitution allows the national government to regulate interstate commerce. It already uses that power to prohibit the sale of Health Insurance across state lines, even though it allows other forms of insurance to be sold.

But it is quite a logical leap to get from regulating interstate commerce to mandating individual purchase of insurance, especially since by national statute health insurance purchases do not cross state lines. Plus, there is no historical precedent that would imply that regulating commerce can be interpreted to mean forcing commerce (since that would conflict with the objective of liberty).

So that is why the health care law is likely unconstitutional. The reason why it is scary is that if the law is upheld as constitutional through any of the above constitutional clauses, then our interpretation of the language of the constitution has become so broad that the national government can do anything it wants and call it constitutional. And if that is the case, then our constitution has no inherent meaning and can no longer be counted upon to constrain government to accomplish any of its stated objectives.

I hope that helps explain why we believe the health care law to be unconstitutional and why we fear it.

UPDATE 3/26/2010 Correction

The General Welfare clause I discuss above  is in the preamble.  This is the clause that most people are familiar with and so they assume that when people talk about the General Welfare clause, they are referring to the preamble.  Case law upholds the explanation I have given.  Jacobson vs Massachusetts (1905):

“Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”

It has been brought to my attention, however, that there are actually two references to general Welfare in the constitution.  The second is in the Taxing and Spending clause of Article I Section 8.  This is the general welfare clause that could be cited to justify national action.  It says:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

The interpretation of this general welfare clause has been hotly debated since the very beginning of the republic.  Much of the most contentious political battles between the Federalists and the Democratic-Republicans revolved around how expansively this general welfare clause could be interpreted. The triumph of Thomas Jefferson in the election of 1800 represented a repudiation of the expansive interpretation of the Federalists.   This narrow interpretation was the norm until 1936 when the Supreme Court overturned it in the case of United States v. Butler and then in subsequent cases about the constitutionality of the New Deal laws of the Franklin Roosevelt administration.  However, even though United States v. Butler did overturn the traditional interpretation of this General Welfare clause, it also struck down the New Deal law that imposed a tax on processors of farm products and then used the revenue to be paid to farmers who would reduce their area and crops because it violated the 10th Amendment which reserved powers not enumerated to the States or the People.

Most of the expanding power of the national government since FDR’s New Deal have been justified under this new interpretive approach.  The new health care law could potentially be upheld under that same framework, but the fact that it actually forces consumers to purchase a product contrary to their own preference is unprecedented and would represent a new innovation in constitutional interpretation well beyond anything ever done by New Deal laws.

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8 Responses to Why is the Health Care Law Unconstitutional?

  1. Very good summary. I appreciate these insights. It also speaks to the fact that we as Americans have forgotten how to have a discourse about constitutionality in general, and it certainly isn’t being taught in our government schools.

  2. b-blogit

    I completely agree with you. In addition to the auto insurance you can choose to buy a car and you can choose to drive it. Not quite the way it works with your life.

    Also from what I can gather about the healthcare plan in 2 years the government will take over the policies to their own plan. This is in violation of the Commerce Clause in the constitution which states congress can regulate but not enter into operations in the market. They are entering a market and they dont have the authority to do so.

    I really appreciate your objective comments and I find them refreshing I wish more would look at it like you do and find facts rather than just focusing on words like Hitler, Death Panel or even fair, free or everyone.

  3. I need to sit down and browse the “new and improved” health care bill with all of the recent “fixes” so that I can see exactly what I am getting, not getting, and how much I might be taxed to pay for someone else to receive health care.

    If this law is upheld as constitutional, I am tempted to opt out once I can no longer be denied for a pre-existing condition and simply pay the penalty, which will likely be cheaper for me, and re-enroll when something happens.

  4. I have a few questions that you might have reasonable answers for. We are already being forced to pay for health care through Medicaid taxes. Has Medicaid been upheld as constitutional? (I’m not asking if one personally believes it is unconstitutional, but if the Supreme Court has declared on it.)

    The Claremont Institute link you gave talks about helping preserve life in life-threatening situations, and how that is a high-minded, ethical act. But it isn’t paid for by ethics. It is a huge cost. We require doctors and hospitals to provide treatment in acutely dangerous situations, or they can be prosecuted, so it isn’t solely ethically motivated, but is a de facto legal right. It is paid for by hospitals, by taxes, by increased prices for the insured at hospitals, and by increased costs in insurance, because insurance companies aren’t going to pay for it. If it is constitutional to make us pay in these indirect ways, how is it worse to make it more direct?

    I also fail to see exactly how liberties are being impinged upon (other than those of health care corporations). A currently uninsured person (like my wife, because it would cost an additional 15%+ of our small income to insure her) would have the opportunity to make preventive visits to doctors, thus reducing the chances of something catastrophic but preventable. She then has the choice of preventive v. palliative care, instead of only palliative care which someone would be forced to give in the event of a major incident. That seems like an increase in liberty to me. Millions of people would have this increased choice, far more than will be limited by paying extra taxes for somewhat more limited care that might result as a consequence of this bill (but might not). Then financially, we’re paying huge amounts for the current palliative care system, whether directly or indirectly. (Natural, pre-government conditions did not have modern medicine, and neither did the founding fathers. The most expensive medicine of 1800 was cheap compared to today, so please update any arguments regarding 17-1800s philosophy to explicitly bridge this gap.) Government directed health care in wealthy countries does a much better job of preventive medicine, at a much lower cost, than the US, and thus protects the health of a larger portion of the populace. Following one of the systems of Norway, Denmark, GB, France, or Germany (mentioned by the Claremont Institute), with a fraction of the money currently spent on health care in the US, would provide exceptional care for almost everyone in the US. It would leave more money in control of the people (rather than insurance companies and health care administrators). I see that as increasing my financial liberty. Maybe I’m just as afraid, or more afraid, of de facto corporate control of my liberties than of government control where I at least nominally have a vote. Of course changes in health care will never happen in an elegant, efficient way, but since hypothetical loss of liberty is being presented on the one side, I give hypothetical gain on the other.

    I personally think financial reform (which is what this bill really addresses) is treating a symptom, but will only further expose the disease of the current system. We need a change in the model of care. That said, it’s the first significant change anyone has fought for in my lifetime, and I hope it will put the need for further, more substantial changes into the consciousness of the public. With modern medicine, the infrastructure is so expensive that the competitive market economy doesn’t function well. It takes a big entity to build and supply a hospital. Competition might work for primary care physicians, but most people can’t really choose what hospital to go to, and hospitals can’t choose not to treat people who show up in their emergency rooms.

    Having revealed my bias in favor of the bill, I really am interested in your responses to my thoughts, particularly the first two paragraphs. I do want to understand Liberty better, and it’s a big word.

  5. Hands down the best explanation I’ve read so far. Bravo for well stating the point!

  6. Facebook User

    Hi. You complain that auto insurance isn’t a good analogy because “Driving is a privilege and not a right. Those who do not want to drive are not required to have insurance.”

    When you drive a car there is a possibility that you will hit someone. Auto insurance is required so that if this happens you will be able to compensate them. If you don’t drive a car, there is no risk that you will hit someone, and thus insurance is not required.

    Unfortunately, when it comes to healthcare, everyone represents a risk to society and its government. If you get sick or are injured, society will have to pay for you to get better. There is no way to remove this risk, and thus insurance is required for everyone.

    How exactly do you make your argument work for health insurance? “Those who do not want to ____ are not required to have insurance.”

  7. “Unfortunately, when it comes to healthcare, everyone represents a risk to society and its government. If you get sick or are injured, society will have to pay for you to get better. ”

    Actually, this is false. Let me explain why.

    “Society” does not bear the costs of me getting sick. The doctor or hospital does. And if I get treatment, then I pay the doctor or the hospital. Government has no moral authority to intervene in a private transaction between a sicko and his doctor. Thus your statement is pretty much a straw man argument.

    Let me propose an apt analogy to the health care debate. The idea that we need universal health insurance is interesting. Consider groceries. Can you imagine a call for universal grocery insurance? Surely access to groceries is a fundamental right? We all need to find and eat food.

    Yet, we don’t have that debate because adjusted for inflation, Americans spend slightly less on food now than they did fifty years ago. Why is that? Fierce competition between grocery chains. We don’t need grocery insurance because the free market for food works very well.

    The same mechanism can work for health care if government got out of the way and let competition work its magic across state lines. The fundamental mechanism for buying groceries and buying health care can be the same. The fact that it isn’t is one of the tragedies of contemporary American life.

  8. Facebook User

    Hey Michael,

    You said that ‘society’ doesn’t bear the costs of you getting sick. I think you misinterpreted my comments. The situation here is someone who doesn’t have insurance. If this person is sick or injured and can’t pay for his treatment, his only option is to go to the emergency room – where he will be treated. Your healthcare premiums pay for that. Or he could go sign up for Medicaid. Your taxes pay for that. Either way, it sure sounds like a cost to society to me.

    And here’s your straw man argument: Competition works great for groceries and thus competition will work great for healthcare. What about individuals with pre-existing conditions? In order to be the most competitive, a healthcare company would do well to sign on customers who are unlikely to have health problems, and to shut out those who are like to have health problems – or those who are already sick. The grocery store analogy falls apart pretty quickly.

    I think that healthcare really is far too complicated to draw any simple analogies.

    Speaking of which, I would still love to hear the author’s perspective on how to make his argument work.

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