Is the health-care reform bill unconstitutional?

By Phil Lawler ( bio - articles - email ) | Dec 10, 2009

The Heritage Foundation has released a legal analysis arguing that the health-care reform legislation backed by President Obama is unconstitutional, because it requires every American to carry health insurance. The question is not whether individuals should have health insurance. The question is whether the federal government can compel people to have health insurance. That question cannot be easily dismissed.

After years of social-engineering programs, most Americans have gradually come to assume that if a given policy is wise and beneficial, the government should carry out that policy. But that is not how the US government is framed. The Constitution establishes a government of restricted powers: a government with strict limitations on what it can do. Nowhere does the Constitution give Congress the authority to establish mandatory health-insurance policies. Federal courts have given an elastic interpretation to the "commerce clause" of the Constitution (Article I Section 8), accepting the argument that Congress, under its authority to regulate interstate commerce, can regulate all sorts of economic activities. But a mandate to carry a health insurance policy--a regulation of commerce--is a requirement to engage in that particular form of commerce. The daily Heritage email bulletin, Morning Bell, makes the argument:

If the individual mandate is Constitutional, then Congress could do anything. They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; require us to grow wheat (10 bushels each), or pay someone else to grow your share; require us to buy whatever they want.

Heritage is not alone in advancing this argument. The non-partisan Congressional Research Service observed that "it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service." At the very least, the individual mandate would guarantee a court test of the constitutionality of this legislation.

Unfortunately, American lawmakers have developed their own sense of entitlement. They have come to believe that they are free to do whatever they think best, disregarding the limitations of the Constitution. In October, a reporter from the CNSNews service asked the Speaker of the House, Nancy Pelosi, where she found a constitutional mandate for the individual mandate. Astonished by the impertinence of the question, she could only reply: "Are you serious? Are you serious?"

A constitutional question is always serious, because it touches on the very essence of the republican form of government: a form of government characterized by limitations on power, a government of law rather than a goverment of men. So yes, Madam Speaker, it's a serious question. And the answer?