I’m glad to see this question being asked by a prominent person like Orin Hatch and I think the honest answer to this is NO forced national health care is not Constitutional. But whether a court will have the political guts to rule as such is a different matter.
Sen. Hatch Questions Constitutionality of Obamacare:
If Feds Can Force Us to Buy Health Insurance ‘Then There’s Literally Nothing the Federal Government Can’t Force Us to Do’ ( Maybe Congress should pass a law that everyone has to buy at least $10,000 worth of life insurance or buy a new car this year or buy a new HD television or a computer –where does this stuff stop? I think it stops at the question, Is this Constitutional? In this case I don’t think it is.)
Sen. Orrin Hatch (R.-Utah) (Congressional photo)
(CNSNews.com) – Republican Sen. Orrin Hatch of Utah, who has served in the Senate for 33 years and is a longtime member of the Judiciary Committee, told CNSNews.com that he does not believe the Democrats’ health-care reform plan is constitutionally justifiable, noting that if the federal government can force Americans to buy health insurance “then there is literally nothing the federal government can’t force us to do.”
Both the House and Senate versions of the health-care reform plan would force all individuals who are citizens or legal residents of the United States to buy health insurance. President Obama has endorsed this provision.
Hatch said if the federal government starts ordering Americans to purchase specific products without being able to plausibly justify that mandate through the Commerce Clause of the Constitution which empowers Congress to regulate interstate commerce, it will mean “we’ve lost our freedoms, and that means the federal government can do anything it wants to do to us.”
The Commerce Clause, found in Section 8 of Article 1 of the Constitution, says: “The Congress shall have power to … regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Hatch said this constitutional language authorizes Congress to regulate some types of commercial “activity,” which is different from authorizing Congress to force an individual American to engage in a commercial activity he or she is not presently engaged in and–as a free person–does not want to engage in. He said that “not one” of his Democratic colleagues has given a coherent constitutional argument to explain where Congress would derive the authority to do the latter.
According to the Congressional Budget Office, the federal government has never before mandated that Americans buy any good or service.
In 1994, when Congress was considering a universal health care plan formulated by then-First Lady Hillary Clinton, the Congressional Budget Office studied that plan’s provision that would have forced individuals to buy health insurance and determined it was an unprecedented act.
“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States,” the CBO concluded. “An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”
“I think there’s a real constitutional issue there,” Hatch said on the CNSNews.com program “Online with Terry Jeffrey.”
“Well, keep in mind the General Welfare Clause hasn’t been used for years, except through the Commerce Clause–Article I, Section 8,” said Hatch. “And frankly the Commerce Clause affects, quote, ‘activities,’ unquote. And, you know, the government telling you you have to buy health insurance–mandating that you have to buy health insurance–is not an activity. That’s telling you you got to do something you don’t want to do.
“Well, let’s put it this way,” said Hatch. “If that is held constitutional–for them to be able to tell us we have to purchase health insurance–then there is literally nothing that the federal government can’t force us to do. Nothing.”
When CNSNews.com asked Judiciary Chairman Patrick Leahy (D.-Vt.) where the Constitution authorizes Congress to force Americans to buy health insurance, Leahy would not directly answer the question, claiming that “nobody” questioned Congress’s authority to do this.
“We have plenty of authority. Are you saying there is no authority?” Leahy told CNSNews.com reporter Matt Cover. “Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that.”
House Speaker Nancy Pelosi was equally dismissive of the question of where the Constitution authorized Congress to force Americans to buy health insurance. When reporter Matt Cover asked her the question, she said: “Are you serious? Are you serious?”
White House Spokesman Robert Gibbs similarly dismissed the issue without directly saying where the Constitution authorized the federal government to force people to buy health insurance. When CNSNews.com White House Correspondent Fred Lucas asked Gibbs to comment on the fact that some Republicans were questioning the constitutionality of forcing Americans to buy health insurance, Gibbs said: “I won’t be confused as a constitutional scholar, but I don’t believe there’s a lot of–I don’t believe there’s a lot of case law that would demonstrate the veracity of what they’re commentating on.”
Hatch said that if Congress claimed the power to tell Americans what things they must buy there would be “no limit” to the power of the federal government over the lives of Americans.