Unconstitutional? Surely you jest.
We haven't had a valid Constitution since c. 1861.
Quote from bugscoe:
You seem to need some further education, consider this a freebee:
Is National Health Insurance Constitutional?
Posted August 20th, 2009
We have heard a great deal about the costs and benefits of a âpublic optionâ and âsingle-payer system.â We have heard about the financial costsâand the other costsâof allowing the government to interfere with matters of life and death. However, we havenât heard whether the Constitution gives Congress the power to enact these plans. What does this say about the status of the Constitution in the minds our policymakers today? If a concerned citizen asks a proponent of nationalized healthcare to point to the constitutional authority for such a law, he may hear that the âGeneral Welfareâ clause, the âNecessary and Properâ clause, or the âInterstate Commerceâ clause enables Congress to create national public health insurance to act.
None of these clausesâor any others found in the Constitutionâgives Congress the power to create a government healthcare system.
The âGeneral Welfareâ clause gives Congress the power âTo lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States.â This clause is not a grant of power to Congress (as constitutional law professor Gary Lawson has shown). It is a limit to a power given to Congress. It limits the purpose for which Congress can lay and collect taxes.
During the founding, some Anti-Federalists were concerned that this clause âamounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare.â But James Madison, the âFather of the Constitution,â explained very clearly that it granted no power to Congress. If the âGeneral Welfareâ clause gives Congress the power to promote the general welfare, then why specifically list the other powers in Article I, such as the power to establish post offices and post roads, or to coin money? Wouldnât it be redundant to list them?
In short, as Madison argued, Congress derives no power from the general welfare clause, which merely serves to limit Congressâs power to lay and collect taxes. Congress can only do so for purposes of common defense or general welfare, in the service of the powers granted to it elsewhere in Article I.
Second, âNecessary and Properâ gives Congress the power âto make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States.â Like the general welfare clause, this clause was not a stand-alone grant of power to Congress. Rather, it authorizes Congress to make laws that are necessary (and also proper) to make the other grants of authority in Article I effectual.
In other words, the necessary and proper clause cannot itself authorize national public health insurance. One would have to show that national public health insurance is necessary and proper to execute some other power granted in the Constitution. This puts the proponents of nationalized healthcare back where they started.
Lastly, proponents might argue that national health insurance is part of Congress power âto regulate commerceâ¦among the several states.â While progressives have often used this clause to expand the federal government, it does not apply especially to the creation of a national health insurance, because to create and engage in commerce is not the same thing as regulating commerce among the several states.
Nobody during the framing generation expected the commerce clause to expand the federal governmentâs authority to anything relating to or resembling commerce. James Madison wrote that it is a power âwhich few oppose, and from which no apprehensions are entertained.â The clause was designed to prevent some states from taxing goods that passed through their boundaries as those goods proceeded to market.
In case proponents of government healthcare latch on to another clause, the three clauses above and rest of Constitution are explained in depth in the Heritage Guide to the Constitution .
Of course, most progressive advocates of national health insurance are unconcerned whether the Constitution authorizes such a law when a pseudo-constitutional reasoning to reach the desired result will suffice. But constitutionalists should not allow such attempts to dismiss the Constitution go unanswered.