Lincoln * Institute

Colin A. Hanna

Colin A. Hanna

Let Freedom Ring, USA


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Let Freedom Ring

Three Reasons Why Obamacare is Unconstitutional

by Colin Hanna

Conservatives are mounting challenges to the recently-passed ObamaCare health insurance bill on the grounds that it is unconstitutional: that the scope of the bill exceeds the scope of the federal government. Fourteen states' Attorney's General have filed a challenge, radio talk show host Mark Levin has filed another through the Landmark Legal Foundation, and several others are in the works.

The left smugly dismisses all of these as without merit, and claims that Supreme Court precedent provides clear guidance that the bill is constitutionally sound. However, it does not take a constitutional scholar to examine these claims of constitutionality and identify fatal flaws in each one.

The argument most often cited is that the bill's mandate that every citizen must purchase health insurance is excessive. Read what Erwin Chemerinsky, dean and professor of law at the University of California, Irvine School of Law, wrote in Politico:

"Some who object to the health care [bill] claim that [it is] beyond the

scope of congressional powers. Specifically, they argue that Congress

lacks the authority to compel people to purchase health insurance or pay a tax or a fine."

Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, "substantial effect" can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.

This argument is fallacious on its face. The clause cited relates to interstate commerce. Most health insurance — nearly all of it under current practice — is not sold on an interstate basis. I'm in favor of opening up health insurance sales to the broadest possible competitive marketplace, which means interstate sales, but the current practice is that insurance is regulated by the states and the vast majority of it is not interstate commerce at all: it is intra-sate, and thus beyond the reach of the Constitution under the Tenth Amendment unless the federal government specifically prohibits the states from regulating it.

The second argument is that Congress can regulate many kinds of economic activity not forseen in the eighteenth century when the Constitution was written — but that argument ignores the fact that the ObamaCare mandate is enforced by levying a tax or fine on someone who does not purchase qualifying health insurance. That is not regulating economic activity — it is regulating economic inactivity — an entirely different matter.

Finally, Dean Chermensky makes another haughty claim that ObamaCare is similar to Social Security, in which everyone is required to participate. His exact words are "This is similar to Social Security taxes, which everyone pays to cover the costs of the Social Security system. Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it to Congress to determine this."

Notice the word "tax." The Supreme Court has accorded Congress broad powers to tax. The Social Security tax is indeed a tax — money extracted from a citizen under power of law, and given to the government. The proposed ObamaCare bill would extract money from a citizen under power of law and give it to a private company, an insurance company. That is not a tax — it is extortion, and the mere fact that the government mandates it does not make it a tax. It is the forced purchase of a consumer product. No such economic tyranny can be justified by the Constitution. I'll grant you that this line of reasoning could lead to a very bad place — the conclusion that it's only constitutional if the money is kept by the government through some government-run single payer system — but that's another argument for another day, and unlikely to prevail as a political matter.

So don't let the media persuade you that Constitutional challenges to ObamaCare are without merit. It is the arguments of those who attempt to defend ObamaCare on Constitutional grounds that are without merit.