Health Care: Stopping at the Constitution – Not the White House – Not Congress

Lawsuits are in the works for filing against the Senate health care bill passed by the House on March 22,  and by the Senate on Christmas Eve 2009. Forget the staggering costs of the legislation that will drive this country to its knees and diminish the care Americans receive. The buck stops at the U.S. Constitution. If the person(s) sworn to the official oath fail to uphold it, citizens must act, and to do so, we must understand why we have a challenge, and be able to voice it to the Liberals in our midst – if any.

Stopping at the Constitution, not the White House, not Congress

I first wrote about this in December, before the Senate bill was passed. This minute, Brit Hume is on O’Reilly discussing the Commerce Clause. Why wasn’t this shouted everywhere – early and often? Why wait until today, after the bill is passed? Now Bernie Goldberg is on the factor, patiently explaining that health care for Liberals is a moral issue, but is an economic issue with Conservatives. How about starting with the Constitution and working our down to the economics? Drives me crazy.

The consequences if this law is upheld by the Supreme Court, are daunting:

Congress would have the unlimited power to regulate, prohibit, or mandate any or all activities in the United States. Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people.

Pelosi, et al claims the power to mandate our health care through the U.S. Constitution’s Commerce Clause. Article 1, Section 8, grants Congress the power to:

“[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The Congressional Research Service has acknowledged that the mandate to individuals to buy health insurance may not be constitutional, because it is a “novel issue,” meaning “unprecedented.” This country has never before mandated individuals to purchase a thing, under penalty of imprisonment or fine if you choose to do nothing.

The argument often used that we are mandated to buy auto insurance does not address the new health care law being signed on Tuesday, March 23rd. You can choose to drive, or not. If you choose to drive, you buy auto insurance or you pay the penalty when you have an accident.

Mandated health insurance is different. There is no choice. We buy it, or we pay a penalty accessed through the IRS. If we choose not to purchase health care, and we are penalized with imprisonment or a monetary fine, it will be the first time citizens have been punished for taking no action, whatsoever.

Think about that. We do nothing, and yet we can be imprisoned or fined. We are mandated to buy health care because that is the only way the Obama administration can raise the money to cover everyone in the United States. Think again. You will be imprisoned or fined for taking no action.

Extraordinary.

The powers of Congress under the Commerce Clause, according to the U.S. Supreme Court are:

(1) Congress may regulate the “channels of interstate or foreign commence”. This includes the regulation of steamship, railroad, highway or aircraft transportation.

(2) Congress may regulate and protect “the destruction of aircraft, or persons or things in commerce. An example is “thefts from interstate shipments.”

(3) Congress may regulate economic activities that “substantially affect interstate commerce.

Mandating individual health insurance must fall into one of the three categories of regulation above. The first two are not a possible fit: we are not steamships, railroad, highways or aircraft transportation. We don’t even have the power to buy insurance across state lines. Health care has nothing to do with No. 1.

Mandating individual health insurance has nothing to do with No. 2.

Congress is relying on No. 3 to make it constitutional to issue the mandate.

But, when Congress wishes to apply the Commerce Clause, they must answer this question: “what class of activity is Congress seeking to regulate?” In this case, their answer is No. 3, but:

…the health care mandate does not purpose to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.

According to the Heritage Foundation, the Senate bill that just passed the House says:

“the individual responsibility requirement…is commercial and economic in nature, and substantially affects interstate commerce…

and further:

…the statute purports to convert inactivity into a class of activity. By its own plain terms, the individual mandate provision regulates the absence of action. 

We choose not to buy health insurance, and by that choice Congress says we have participated in an activity that affects interstate commerce. A court must conclude that our failure to buy is economic in nature.


Congress can choose to regulate the health insurance industry, but the Heritage Foundation, and other attorneys say the mandate to buy cannot be regulated…without creating a new Constitutional Doctrine. If that is true, it won’t be easy to do so.

If court challenges make it to the U.S. Supreme Court, and SCOTUS upholds Congress, and we must accept a mandate, then we have been subjected to “federal control by virtue of the fact that the individual merely resides within the borders of the United States. It will be the first time in the history of the Nation that the Commerce Clause has yielded an action on every single person in the country. Congress will have gained unlimited power.

Unprecedented!

Once again: Congress will have gained unlimited power.

Congress would have the unlimited power to regulate, prohibit, or mandate any or all activities in the United States. Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people.


The Heritage Foundation gives the following examples of how interestate commerce has not been used in the past, and we should ask why we should allow Congress to perpetrate this power grab now – and understand, if we do give them power of the health care mandate, the can do all of the following:

Even in wartime, when the production of materiel is crucial to national survival, Congress has never claimed such a power.

For example, during World War II, no farmer was forced to grow food for the troops; no worker was forced to build tanks.

While the federal government encouraged the public to buy its bonds to finance the war effort, it never mandated they do so.

While Congress levied a military draft, it did so as necessary and proper to its enumerated power in Article I, sec. 8 “to raise and support armies,” not its commerce power.

What Congress did not and cannot do during a wartime emergency, with national survival at stake, it cannot do in peacetime simply to avoid the political cost of raising taxes to pay for new government programs…. 

Simply because Congress can regulate wheat production under the Agricultural Adjustment Act does not entail that Congress can require every American to buy boxes of Shredded Wheat cereal on the grounds that, by not buying wheat cereal, non-consumers were adversely affecting the regulated wheat market.

For more on mandating individuals to buy auto insurance, read this but skip to (D)