A few weeks ago I wrote about Speaker Pelosi's response to a reporter's question about the constitutionality of proposed health care legislation.  To recap, the Speaker shrugged the question off as ridiculous, one not worthy of serious consideration. Yet the answer to this question is essential to the consideration of any piece of legislation if we are to maintain our liberty as individuals.   

I must admit that I have not read the entire 2000 plus page monstrosity of proposed health care legislation.  However, as I understand it, the bill mandates that every individual in the nation buy health care coverage.  To enforce this mandate there are a variety of penalties levied on any individual that chooses not to comply.  The Constitutional question that was posed to the Speaker is a rather simple one: Does the Constitution grant the federal government the power to force a person to buy health care coverage under a punitive system for non compliance?  The answer to this question is also relatively simple.  Under our Constitutional framework, the federal government simply does not have that power. 

When the framers drafted the Constitution, a principal concern was to ensure individual freedom by limiting federal power.  One of the primary ways this was accomplished was by creating a system where the federal government can only act pursuant to limited, specifically defined powers.  All other power was reserved to the States or to the People via the 10th Amendment.  James Madison wrote in the Federalist Papers: "The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite."  The principle that the federal government remains one of limited powers is universally recognized by our legal system.  The Supreme Court has consistently maintained that "the federal government is acknowledged by all to be one of enumerated powers.  The principle, that it can exercise only the powers granted to it…is universally admitted."  {See McCulloch v. Maryland (1819) and U.S. v. Lopez (1995)}

The powers given to the federal government are very easily understood from a quick reading of the Constitution.  The federal government has the power to levy taxes, pay debts, provide for the national defense, borrow money, regulate commerce with foreign nations and among the states, establish rules for citizenship, coin money, establish post offices and roads, set up federal courts and declare war.  All other government powers are reserved to the states "or to the people" pursuant to the 10th Amendment.

So where does the power to mandate the purchase of health insurance come from?  It could come only from one place: the power to regulate commerce.  Indeed, if pressed Speaker Pelosi would answer the health care constitutional question by claiming that it falls within congressional power to regulate commerce with foreign nations and among the states.

But how does forcing an individual to buy health insurance fall with congressional power to regulate commerce?  The simple answer is that it doesn't.   The precise power given to Congress by the Constitution is "To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes".  Clearly, health insurance coverage has nothing to do with the regulation of foreign commerce or the regulation of commerce with the Indian Tribes.  Therefore, in order to fall within the confines of the Constitution it must be enacted pursuant to Congressional power to regulate interstate commerce. 

The interstate commerce power was originally intended by the framers to make sure the federal government had the power to ensure that commerce could flow freely across state boundaries.  It grants the federal government power to ensure that states do not enforce laws that would favor business in their states at the expense of other states.  For example, if a state were to enact laws to make it easier to manufacture a product in their state by imposing a tariff on out of state imports of that same product, Congress has power under the commerce clause to strike down such discriminatory laws to ensure the free flow of commerce between the states.

Mandating an individual to buy health insurance or face criminal fines for non compliance has nothing to do with the regulation of "interstate commerce".  It is not enacted to ensure the free flow of commerce among the states.    It is simply an attempt by those in power to expand their power into spheres that the Constitution was intended to prevent.  It is evidence of a Progressive intent to control health care decisions that should remain personal choices free from the control of government.  Should such legislation ever pass, it is likely that the Supreme Court of the United States would strike it down as an unconstitutional expansion of federal power.  Indeed, 18 states have already announced their intention to file suit for such a declaration should such health care legislation ultimately pass.  The proposed health care package is nothing more than an unconstitutional power grab by those that seek to expand their power and control over individual liberty.

Sam is an attorney currently working as a tax consultant and advisor to a variety of business clients located throughout the Midwest.  He is a native of Belpre, Ohio, and a graduate of Ohio State University (B.A. Political Science) and Capital University School of Law (J.D., LL.M. Tax and Business Law).  During his career, Sam has worked as in house counsel to a health care service provider and as an attorney in private practice.