Isn't It Unconstitutional? [Mandatory Healthcare]

General Questions
#1

I have read the U. S. Constitution and its amendments. It is my understanding the Constitution grants authority to the Federal Government. Any authority not granted to the Federal Government, resides with the States or the People as stated in the 10th amendment.

I have not been able to find any authority listed in the Constitution or its amendments that grants the Federal Government the authority to require U. S. Citizens to purchase anything they do not desire to purchase. I am questioning if the Federal Government has the Constitutional authority to require individuals to purchase Health Care Insurance.

Thank You

Tom Wemyss

#2

Moved to the more appropriate forum.

#3

Never mind.

#4

This post is (edit: not) in the wrong forum, but here we go:

#5

What part of the public option requires people to purchase insurance?

We (states) generally require people to purchase auto insurance. Don’t see that in my state Constitution. We require people to wear seat belts and drive the speed limit. Don’t see that in the Constitution.

The Constitution is not a document of minutae, detailing every possible aspect of life and how the government is able, or not able, to regulate it. It is an over-arching document laying out the general foundation upon which our law is constructed.

#6

Ultimately, it is up to the Supreme Court to decide. But there are many laws where the Federal Government takes on an authority that is not specifically mentioned in the Constitution.

For instance, take air traffic controllers. Nothing in the Constitution specifically grants the Federal Government the right to control air traffic. Yet they do, partly because of the commerce clause (i.e., the Federal Government can regulate interstate commerce) and partly because everyone thinks it’s a good idea.

The Constitution also does not grant the Federal Government any right to regulate highway speed limits, yet they do.

The rationale behind regulating health care is that it is a form of commerce (an ever-growing part of the economy) and that it is interstate commerce (one argument opponents of the current bill have made is that insurance companies should not be regulated by the states so that they didn’t have to tailor their plans to meet state requirements – clearly a tacit admission that health care is interstate commerce). Since Congress can regulate health care as Interstate Commerce, they can come up with any regulation they feel is necessary to “promote the general welfare” of the country.

#7

As an aside, the commerce clause ([The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; Article I, Section 8) is the real heart of the Constitution vis a vis the powers of the Federal government. The taxation power, treaty power, etc, are all fairly narrow powers granted to the Feds. The commerce clause, on the other hand, is the basis for the overwhelming majority of laws that congress makes, including a lot of criminal law.

Of course, the big issue with the CC is that in this day and age, everything is in the course of interstate commerce. There was a case where feds claimed jurisdiction over a murder solicitation between two people in the same state, because their cell phone signal was bounced to an out-of-state tower, which was upheld. It was also the rationale behind the civil rights legislation.

The Bill of Rights and such are the sexy parts of the constitution, but the workhorse is the commerce clause.

#8

Two points:

First, I admire the OP for properly analyzing the tenth amendment–by looking to the rest of the constitution to determine if the law in question fits under any of those powers.

The Tenth is a provision that is in many ways redundant (note, not meaningless, but redundant)–since it duplicates the implicit limitation on the federal government that stems from the constitution being a grant of certain powers to the federal government—the tenth is simply a statement that powers not granted to the federal government remain with the states.

So to interpret the tenth amendment in the context of a given law, the real analysis does not look to the text of the tenth amendment itself–but to see if the proposed law fits into any of the other powers the constitution grants to the federal government. All that is needed is one source of lawmaking authority.

Second, the OP demonstrates the power of framing–if you phrase a given act of congress in one way, it may not seem to fit under any constitutional provision–but if you describe it in another way, it may clearly fit under a grant of power. That is (as many others have pointed out) a task for the courts (and the Supreme Court, at the margin).

Even extreme textualists who disagree that the court should interpret the constitution in any way (a silly position) must admit that part of the role of courts is determining facts–determining if a given activity is, or is not, for example, commerce under whatever definition it is using.

So there is little weight to the argument that, as you think a law should be defined, it doesn’t seem to be constitutional–without having the courts agree that your chosen definition is the proper way to define a given law, and (perhaps implicitly as a part of that process)-that there is no way to reasonably construe the law as a valid exercise of congressional lawmaking power (since if there is, it is hard to argue that does not constitutionally validate the law).

#9

As far back as the nineteenth century, the Supreme Court ruled that the Federal governnment had “implied” powers not spelled out in the letter of the Constitution. (McCulloch v. Maryland). The Civil War vastly expanded federal power; indeed, it virtually established that the federal government was an entity in its own right rather than just the embodiment of the collective will of the states, and any niggling points such as the technical unconstitutionality of creating the State of West Virginia were held to be overruled by Grant vs. Lee 1865).

What really undid strict federalism was the expansion of the industrial revolution in the latter nineteenth and early twentieth centuries. The increasing interconnectedness of the country as a whole made the concept of the states as sovereign enclaves increasingly unworkable. When the economic crisis of the 1930s hit, the only way to deal with it was to accept vastly expanded federal power.

Strictly speaking it would have been far better if a formal constitutional amendment (such as the one that granted the power to tax income) had been passed recognizing that it was necessary to expand the federal government’s explicit powers, but political expediency won out.

#10

Not the same thing at all. AFAIK, a person is only required to do such things if he intends to drive a car on public roads.

#11

There is a difference between your state’s constitution and the federal constitution. The state government has plenary police power; the federal government has limited, enumerated power, albeit supreme in its area.

It is meaningless, therefore, to point out that your state requires people to wear seatbelts or purchase auto insurance. Your state has that power. The question is: does the federal government?

Other posts have addressed the answer to that question quite well.

#12

Exactly. Driving is an optional activity, though most would do so if given the opportunity. Suicide aside, living, on the other hand, isn’t optional.

#13

Where did you get this idea? States set the speed limits. The feds do force states to do certain things (lower speed limits, lower BAC for a DUI) by threatening to pull highway money but they cannot set a speed limit or a BAC limit.

#14

I think that was Chuck’s point. Congress has no direct authority to set speed limits, but does so anyway through creative (some would say abusive) use of their ability to tax and appropriate money.

#15

Not so. The Supreme Court put the kibosh on that particular abuse with US v. Lopez.

#16

Exactly. Highway speed limits are dictated by the Federal government. The constitution has nothing in it that says the Federal Government can withhold highway money from the states. It also has nothing that says the Federal Government can spend tax dollars on highways, for that matter. In fact, the Federal rules on highway speed limits apply to highways solely within a single state and the Feds do fund such roads.

Nothing about the Interstate Highway system is specifically mentioned in the Constitution. There’s no mention about the government controlling the radio and TV frequencies, either. But they are accepted as part of the commerce clause, and due to common sense.

#17

They hardly “put the kibosh” on it, as you say. It’s not even an abuse. There have been plenty of cases after Lopez where the court upheld or refused cert to commerce clause power challenges.

Those of us not overly pedantic would read in the implied “almost”.

Also, federalist fantasies aside, Lopez does not mark a major change in the state/federal power divide.

#18

[moderating]
Edited thread title to make it clear what it’s about.
[/moderating]

#19

How in the world did the Supreme Court read this above and decide that Congress can regulate anything which affects interstate commerce?

I can regulate my own property, but I can’t take the next step and regulate the neighbor’s property because it substantially affects my own. Raw power grab that was.

#20

The part where it says “among the several states”. It was built into the constitution. States aren’t allowed to have tariffs on other states’ goods, etc, and there is no one else to regulate it. Your analogy to grabbing your neighbors land is exactly opposite the reality, it’s more like the homeowner’s association (that you joined!) is telling you not to start bonfires in your yard because you might catch the neighbor’s house on fire.

The reach of the clause has expanded over the years because interstate commerce has expanded over the years. It’s not as if this a new development or anything.