Are the Proposed Health Insurance Mandates Constitutional?

The Democrats’ plans to require Americans to purchase health insurance or else be fined or imprisoned is one of those rare issues that gets some government officials questioning it on constitutional grounds. Most issues are not questioned if they can attract enough votes to be passed. But this one is getting some constitutionality attention.

There have been a variety of opinions offered on how this requirement can be constitutionally justified. CNS News features several articles about it, mostly with Democrats claiming that Congress can do just about anything it wants to “promote the general welfare.” This assumes that whatever they decide will do that is OK. They refuse to think that the “general welfare” clause is a statement of purpose, not a blank check.

Others cite the Congress’ responsibility to regulate interstate commerce, but requiring people to buy a certain type of product falls outside that authority.

Here are some items at CNS News [1] (in bold) reflecting the Democrat’s inability to pinpoint where this constitutional authority is specifically found, but expressing the idea that it’s there somewhere (my comments not in bold):

“Sen. Bob Casey [D-Pa.]: Health Care Mandate Constitutional, But Not Sure If There’s ‘Specific Constitutional Provision’” You might try reading the Constitution some time, Senator.

“Sen. Nelson[D-Neb.]: Constitutionally, Congress Can Probably Mandate Health Insurance in ‘Same Place’ States Can Mandate Car Insurance” Three points to consider here:
First, a person can avoid the requirement to purchase auto liability insurance by not driving. Second, The required auto liability insurance covers only people other than the insured. Third, under the Tenth Amendment, states can impose requirements that are not specifically granted to the federal government or prohibited to the states. It is this amendment that calls into serious question the constitutionality of the entire health care legislation.

“Sen. Sanders [I-Vt.]: Constitutional Authority for Congress’ Health Insurance Mandate ‘Probably’ Same as Medicare” He also mentioned Medicaid and VA medical services. Medicare is actually on questionable constitutional grounds, but by now it is entrenched to the point that it is politically unlikely to be questioned very much. Medicaid operates through the states, giving it a little better standing. VA health care can be considered part of the federal government’s authority to provide for the military. But the government takeover under Obamacare has no constitutional warrant itself, and certainly the insurance purchase mandate has none.

As Mark Levin, author of the best-selling book Liberty and Tyranny, pointed out at a Washington rally on November 5, the Democrats aren’t really much concerned with the Constitution:



Fortunately, some of our elected representatives recognize the constitutional shortcomings of the health care proposals. For instance, Sen. Jim DeMint (R-S.C.) argues against the insurance mandate on constitutional grounds:

“‘Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,’ he said. ‘This is not at all like car insurance. You can choose not to drive but Americans will have no choice whether to buy government-approved insurance.

“‘This is nothing more than a bailout and takeover of insurance companies,’ said DeMint. ‘We’re forcing Americans to buy insurance under penalty of law and then Washington bureaucrats will then dictate what these companies can sell to Americans.

“‘This is not liberty,’ he said. ‘It is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can.’” [2]

Sen. Nelson said that since he’s not a constitutional scholar, he couldn’t answer the question about the constitutionality of the mandate. [3] I say, the constitution is written in such a way that a person does not have to be a constitutional scholar to understand it. On the other hand, President Barack Obama is supposed to be a constitutional scholar and he doesn’t seem to understand it very well.

[1] CNS News.com, Politics news stories headlines, 12/26/09 at http://www.cnsnews.com/news/categories

[2] Chris Neefus, “Sen. Nelson: Constitutionally, Congress Can 'Probably' Mandate Health Insurance In ‘Same Place’ States Can Mandate Car Insurance,” 12/24/2009,
CNS News.com, at http://www.cnsnews.com/news/article/59008

[3] Ibid.

Amendment X

“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.” – Tenth Amendment to the United States Constitution

It’s X because X is the Roman numeral for ten, but it could be called X because, among members of Congress and the Obama administration, it seems to be largely unknown and certainly ignored.

As the current Congress and Obama Administration extend their tentacles to take in more items and people to control more directly, the Tenth Amendment has become a significant issue. The Constitution clearly limits the authority of the federal government and, just as clearly, the federal government has managed to push the Constitution aside in order to get the power it wants in many instances.

The Tenth Amendment became part of the Bill of Rights because of the concern of some of the Founders, and the states in general, that the federal government, unless specifically restrained, might take over the internal operations of the states, and abuse their authority. Federalists and anti-Federalists agreed that the power of the federal government was limited, but disagreed on the necessity for the Tenth Amendment. [1]

“Thomas Jefferson described the Tenth Amendment as ‘the foundation of the Constitution’ and added, ‘to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.’ Jefferson's formulation of this doctrine of ‘strict construction’ was echoed by champions of state sovereignty for many decades.” [2]

States have occasionally succeeded in thwarting federal laws. A recent example is the REAL ID law that, while on the books, is not being implemented due to state resistance. Twenty-five states, led by Maine, have passed laws nullifying it within their states. [3]

Constitutional questions have arisen as to the federal government’s authority to take over health care as described in the House and Senate versions of Obamacare. There is no specific authority for the federal government to do so. Some argue that the Preamble statement of a purpose “to promote the general welfare” covers this, but if it does, it covers a multitude of possible sins of legislation, being so broad and vague. Or, perhaps the Interstate Commerce clause grants the authority? But is refusing to buy insurance an example of interstate commerce? I think not.

If there is a case to be made for constitutional authority for government-run health care for everyone, it probably would arise from the following:

United States Constitution, Article I, Section 8, Clause 1:
“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;
....
Clause 18:
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Lacking any compelling necessity for such a law, it would seem that the Tenth Amendment is strong enough to override the claim that such a law is constitutional.
But who knows how the courts might decide? If this is ruled acceptable, the whole private sector is in danger, because then the government can think up excuses to take over any industry or sector it wants. They’ve already done some of that with the bailouts.

The Tenth Amendment’s effect has risen and fallen over the years from having some impact, to having virtually none (as in the Reconstruction days following the Civil War). [4] But a good many of the states these days are working to dust it off and claim their own sovereignty through nullification laws. Several such laws have been introduced, but most have yet to become law. . Check www.tenthamendmentcenter.com for updates on these activities.

Governor Rick Perry of Texas expresses the concern and frustration of many with the continuously expanding power of the federal government at the expense of states’ rights:



Thirty-eight states have introduced Tenth Amendment resolutions. The are in various stages of consideration, and two (Tennessee and Alaska) have been signed by governors, according to Tenth Amendment Center.

The Tenth Amendment should be a defense against Obamacare, cap and trade and other intrusive federal laws and proposals. The Tenth Amendment is certainly at the heart of the Tea Party protests. More people are becoming aware of their constitutional protections. We can’t really rely on federal officials to live up to their oath of office. They will have to be held to it by citizens.

“The world needs to be reminded that all human ills are not curable by legislation, and that quantity of statutory enactment and excess of government offer no substitute for quality of citizenship.

“The problems of maintaining civilization are not to be solved by a transfer of responsibility from citizenship to government, and no eminent page in history was ever drafted by the standards of mediocrity....”
— President Warren G. Harding


[1] Forrest McDonald; revised by Robert M. Hardaway and Adisa Hubjer, “Amendment X to the U.S. Constitution,” Answers.com at http://www.answers.com/topic/amendment-x-to-the-u-s-constitution

[2] Ibid.

[3] Tenth Amendment Center at http://www.tenthamendmentcenter.com/the-10th-amendment-movement/#realid

[4] “Law Encyclopedia: Tenth Amendment,” Answers.com, see [1].

Nanny State Goes After States Over Distracted Drivers

From a Fox News article by Nina Donaghy, 10/01/09: “Texting, using hand-held and hands-free cell phones, talking to passengers and even programming your GPS while driving can all be life-threatening distractions on the road, Transportation Secretary Ray LaHood and others said at a national Distracted Driving Summit Thursday.” [1]

LaHood said President Obama has just signed an executive order forbidding texting while driving for federal employees driving on government business. The administration wants to crack down on the aforementioned distractions for all drivers. The article reports that Sen. Charles Schumer (D-NY) wants the auto and phone industries to support his bill requiring states to either forbid texting while driving or face the loss of one-fourth of their federal highway funding [2]

OK, we shouldn’t be texting while driving, and shouldn’t be distracted by other things. But where does the federal government draw the line on what is a federal issue and what isn’t? Apparently seizing any opportunity to regulate the lives of the American people, the Senator is promoting this bill, and has even given it a cute acronym/name, ALERT, for Avoiding Life Endangering and Reckless Texting, according to the article. That should make people want to support it.

This is right in line with the liberal, nanny-state mentality that believes that if anyone points out a serious problem of some kind, it’s the federal government’s responsibility to “do something about it.” This is an example of how the federal government gets involved in so many things that are properly and traditionally the domain of state and local authorities. The statistics on accidents and deaths caused by texting while driving (cited in the article) are available to and studied by all state departments of public safety, and numerous other agencies, non-profit organizations, insurance companies, etc., etc.

It seems that state and local authorities are quite aware of the problems and are at work on dealing with them. Various localities have restricted cell phone use by drivers and more rules are being considered. But that is not enough to suit Sen. Schumer, who thinks the federal government, specifically himself, should determine who may do what, and what the (serious) consequences will be for a state’s failure to comply. And he has them, in general, over a barrel, because most states can’t afford to give up a cent of federal money.

They don’t need Schumer’s bill to force them into anything. The federal government seems to have no respect for the state authorities and views them as subordinate units of the federal government, which they are not. Someone should be reading the Tenth Amendment, of which Schumer’s bill would be a gross violation.

It’s hard to question the motives of people who just want to “save lives” by whatever means. But, as usual, the U.S. Constitution is being trampled underfoot by power-seeking federal officials. What about chewing gum while driving? It’s just a matter of time, I suppose, until we get a law prohibiting that, too, on penalty of giving up another fourth of highway money.

I may have to send a text message to my congresswoman about this

[1] Nina Donaghy, “LaHood Pledges to Crack Down on Distracted Driving, Warns of Fatal Consequences,” Fox News.com at http://www.foxnews.com/politics/2009/10/01/lahood-pledges-crack-distracted-driving-warns-fatal-consequences/

[2] Ibid.

Photo: Dreamstime.com

Who Has Read the Tenth Amendment?

From a CNSNews.com story on September 4 about a town hall meeting with Senator Mark Warner (D-VA), held in Fredericksburg, VA:
“Despite tough questions, Warner showed signs of being rattled only once, when he took a question from a high school government teacher. ‘Where in the Constitution, article and section, does the government have the right to run health care?’

“That question received the only standing ovation and the longest applause of the night as Warner struggled to get his answer in.

“‘You are advocating we do away with Medicare,’ he responded to the teacher. ‘There is no place in the Constitution that specifically says health care,’ he continued. ‘There is no place in the Constitution where it specifically says education. There is no place in the Constitution that talks about the right to own a telephone.’” [1]

The teacher had a very good question. Most politicians today seem to think that the Constitution allows anything they might want to suggest, provided they can get the votes to get it passed. I have said that the Obamacare proposal (the House bill or anything similar) is unconstitutional because it violates the Tenth Amendment of the United States Constitution: “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.”

I realize it’s difficult to “think on your feet” about abstract legal issues. However, the senator’s logic is somewhat mistaken. The Constitution describes the powers of government. Mainly it describes what government’s powers are and are not, and what the rights of the people are. The fact that it doesn’t mention the right to own a telephone (or computer or automobile, for that matter) does not prohibit anyone from owning such things. The fact that it does not delegate to the federal government the right to take over and operate the nation’s health care does prohibit the federal government from doing that. As for Medicare, that is on shaky ground, not only financially, but constitutionally.

However, it is firmly in place, so doing away with it would seem politically impossible. I think. Obama proposes massive cuts in Medicare and eliminating Medicare Advantage plans. This should scare seniors quite a lot (and make them rethink their support of the AARP). And they would face being rationed out under a government health care plan, as would the seriously or chronically ill. The fact that we have Medicare does not justify expanding government health care further.

He said there is no place that specifically says education. Here’s another area that should be seen as questionable constitutionally as far as the federal government is concerned. I remember that some 45-50 years ago, the candidates for governor of Texas were talking about how we needed to resist “federal aid to education” because we would end up with federal control of education. Turns out they were prophetic. The teachers unions now control the leftist indoctrination of many students in public schools, a process continued in most colleges and universities.

It’s not difficult to get the idea that politicians do not want to think about the Constitution or the constitutionality of proposed laws. Lawmakers ought to give a lot of attention to the law of the land. At least Senator Warner assured his audience that he would read any bill before voting on it. That’s a start, I suppose.

Back to “health care reform.” The constitutional argument is just one of several major reasons to oppose Obamacare. It would be a serious drag on our economy. It would discourage people from going into medical practice. It would leave many people untreated who can readily obtain medical treatment now. There are good methods available to get health insurance coverage for the people who need it but can’t get it, without the disintegration of the current system.


[1] Fred Lucas, “Virginia Democrat Says He Might Support Public Option ‘Down the Road,’” 09/04/09, at http://www.cnsnews.com/news/article/53568

Photo: Dreamstime.com