Tuesday, March 16, 2010


Before I begin, I would like to encourage any who may be reading this to please read the entire post, even though it is long. The things I will discuss as pertaining to healthcare reform are more important than any of the other issues being discussed.

As many of you know, the President has been pushing for final vote, for the healthcare bill that is currently pending in Congress, by March 18th before he leaves for Indonesia and Australia. In the lead up to this, there has been an extraordinary amount of public debate as to its merits philosophically and politically, and as to whether the reform will or will not fix the status quo of healthcare.

However, what is distinctly absent from these debates is discussion as to the constitutionality of the proposed healthcare bills. This is a travesty. Here we are on the precipice of one of the largest and most expensive expansions of the federal government in American history, and few, if any, have even bothered to consider whether these proposed bills are constitutional, and the debates that I have heard as to its constitutionality are extremely superficial.

There are those who argue that healthcare reform is so important that ends justify the means, and that regardless of whether it is constitutional or not, it should be passed. Anything that requires a violation of the constitution to accomplish is immoral on its face. It is the constitution, and not political parties or political causes, to which we owe our highest moral duty.

This is because the constitution is the only thing standing between us and our government. It is the constitution, not legislative or executive grace that guarantees our liberties. It is not the President, not the Congress, not the military, not the free market— it is the constitution that guarantees us our liberties. Without the constitution any of the above named forces would be glad to rob you of them.

With this in mind, it is now my burden to show how the current proposed healthcare bill pending in Congress violates the Constitution. Because many of you might not be familiar with constitutional law, I will try and make it as simple as possible. But first I will start with the common knowledge approach which we can all be on equal footing with.

Recall in your mind a time in your life when the federal government has ever come to you and required you to buy a certain product or enter into a contract with another party. For instance, has the government ever told you that you must enter into a contract with a developer to buy a certain piece of real property, even if you weren’t in the market to buy land? Has the government ever mandated that you enter into a contract with a particular car dealership to purchase a particular type of car, even if you weren’t in the market for a new car? Can you think of any such instance?

If you thought of car insurance, think again. State governments, not the federal government requires you to purchase car insurance. There are many I have heard who have made this analogy and it is absolutely incorrect. The powers of state governments are wholly separate from the power of the federal government. It scares me that people are in high places are either ignorant of this, or are just being plain deceitful.

The reason you can’t think any examples is because it has never been done. The federal government has never had such power over your life so as to force you to enter into a contract with another person and purchase a good from that person. Yet, that is exactly what the government is trying to do with healthcare. Besides being a violation of your natural rights this is a gross violation of your constitutional rights.

In showing how the current proposed reforms are unconstitutional, I will narrow my remarks strictly to aspect of the healthcare reform proposal that mandates that the American people buy healthcare insurance, which is essentially the crux of healthcare reform. The constitutional issue that is raised here is whether Congress has power under the Commerce Clause of Article 1 Section 8 of the Constitution to require citizens who lack healthcare insurance, and who are not participating in interstate commerce, to buy healthcare insurance. The answer to the constitutional question is affirmatively, no.

The first thing that must be noted is that if Congress is to have any power to act at all in a particular area, its power must be either expressly or impliedly granted to it under the Constitution to do so. If the power to act is not given by the constitution, Congress may NOT act. Congress is only as powerful as the Constitution allows it to be.

The question then becomes what, if any, part of the constitution is Congress deriving its power to undertake healthcare reform. It has been alleged that Congress is acting under the Commerce Clause of Article 1 section 8 of the Constitution which gives Congress power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Hence, many have claimed that Congress has power to force citizens to buy healthcare insurance under its power to “regulate commerce among the several states.”

Okay, so now that we’ve decided that Congress is claiming to be acting on its authority to “regulate commerce among the several states,” it now becomes imperative to find out what the Supreme Court has interpreted this clause to mean. Since the year 1803 in the watershed case of Marbury v. Madison, it has been the Supreme Court’s duty to determine “what the law is.” This means that what the Supreme Court interprets the Constitution to mean is what becomes “constitutional law” or “the law of the land.”

In 1995, in the case of United States v. Lopez, the Court, overlooking the expanse of many cases over many years, outlined the scope of Congress’ power under the Commerce Clause to consists of the power to regulate three particular areas:

First, Congress may regulate the “channels of interstate commerce.” These “channels” are things such as highways, ports, airways, railways, etc. Healthcare insurance is not related to any sort of “channel” of interstate commerce whatsoever; therefore, if Congress is to have authority to force individuals to buy healthcare insurance, it may not derive its authority to do so as being a “channel” of interstate commerce.

Second, Congress may regulate “the instrumentalities of interstate commerce, and persons and things in interstate commerce.” Health insurance isn’t an “instrumentality” of interstate commerce. It’s not an “instrument” of any sort; it is a service. And healthcare is obviously not a “person or a thing” in interstate commerce—healthcare is a service not a person or a thing. Thus, Congress has no authority to act through this part of the commerce clause test either.

If Congress is to have any authority whatsoever to force citizens to purchase health insurance under the commerce clause, it would have to fall under the last prong of the commerce clause test, which states that Congress has authority “to regulate economic activities that substantially effect interstate commerce.”

This part of the Commerce Clause that the Supreme Court has created is the most controversial, and didn’t exist until after 1937 when FDR tyrannically threatened the then sitting Supreme Court that if they didn’t get on board with the “New Deal” and stop overturning new deal legislation, he would “pack the court” by increasing the number of justices from 9 to 15. Because the Justices did not want their power diluted, they did in fact jump on board with FDR’s new deal. What has followed has been a gradual unraveling of our personal liberties. However, nothing compares to the threat to our personal liberties that the precedent set by this bill will pose.

Let me break this portion of the Commerce Clause jurisprudence down for you as simply as I can. Before 1937, Congress could regulate only those activities which were actually directly involved in interstate commerce, such as shipping logs from one side of the country to another. Then along came the case of Wickard v. Filburn (1942). That case concerned a federal law which told farmers how much wheat a farmer could or could not grow. Well, along came this farmer who decided to grow a little more wheat than was allowed under the statute, not so he could sell the wheat through interstate commerce, but simply to use on his own farm to feed his own family and animals. The farmer was prosecuted for violating the federal statute for growing more wheat than Congress allowed.

The Supreme Court upheld the prosecution and declared a new law as part of the Commerce Clause that has come to be known as "the substantial effects test.” Under this test the farmer’s act of growing wheat for home production, even though he had no plans to sell it in interstate commerce, could be regulated because if the farmer, and other farmers like him, all grew their own extra wheat, there would be less wheat purchased on the national market and that the “cumulative impact” of all the such activities by farmers would affect supply and demand, thus having a “substantially effect” on interstate commerce.

Does this sound just to you? Should Congress be able to tell a man that he can’t grow wheat to feed his own family? I believe this case was wrongly decided, but nonetheless, it is now the law.

Since that decision, the court has narrowed the scope of this part of the Commerce Clause. In United States v. Morrison the court essentially held that if Congress is going to regulate an activity it has to be one of an economic nature. In that case Congress tried to pass a law through the Commerce Clause that would have regulated gender based violence, which Congress argued had a “substantial effect” on interstate commerce. The Supreme Court shot this law down, holding that even if an activity somehow has a “substantial effect” on interstate commerce, the activity has to be inherently economic. And since gender based violence is not an economic activity, it could not be regulated through the commerce clause.

So where does this put us today? The first question we should raise is whether the act of buying healthcare insurance is an “economic” activity. I would argue that it is not. But there is an even more important issue here. Notice that in all of the law that I have laid out for this third part of the Commerce Clause, the key word is “activity.” The court has held that Congress may regulate economic ACTIVITY that substantially effects interstate commerce.

So the real issue becomes: Is the act of NOT buying healthcare insurance an economic activity? NO! It is an INactivity—the absence of activity. And the Supreme Court has never held that Congress may regulate INactivity.

Do you see what is going on here? Congress is saying here that not only can it prevent you from growing your own wheat to feed your own family, but it can also force you to buy wheat from someone else. The difference here is between Congress being able to tell you what you CAN’T do and Congress being able to tell you what you MUST do.

So let's return to your farmer in the Wickard case. Let's say that after the Court's decision, the farmer was so upset that he decided to give up farming altogether, vowing that he never wanted to see another grain of wheat as long as he lived. Well, Congress then comes knocking at his door again and says that while he may give up farming, he may NOT stop purchasing wheat. Therefore, although the farmer no longer needs or wants the wheat, he must continue to purchase it from the other farmers. Does this sound right to you?

We have come a long way from when the Supreme Court once held that one’s activities could not be regulated by Congress unless they were literally and tangibly involved in interstate commerce, such as shipping and receiving goods across state lines. Now Congress wants to take its Commerce Clause power to even greater heights. Not only does it no longer have to wait for persons and things to move in interstate commerce before it can act, Congress now desires to reach into your home and your life and demand that you yourself become a part of interstate commerce. Unprecedented!

Not even during times of war and national emergency or crisis has Congress taken such carte blanch power over the liberty of the American soul. Congress has simply never had power to force the American people to participate in interstate commerce where that person has chosen not to.

If you are not concerned or frightened by this, what is wrong with you? I am being serious. I’m doing my best to refrain from hyperbole here, but do you really want healthcare, and all of the other things you think you deserve, at the expense of your liberty? Do you really want healthcare at the cost of the Constitution?

If Congress may now regulate economic INactivity, what is left that Congress cannot do? Think about how much of your life centers around what you do and don’t buy. If Congress can force you to buy a certain things as it is doing with healthcare, rest assured, it can do it with other areas.

The government now owns General Motors. Is it not conceivable that Congress could come to you and say: “Citizen, your economic ‘inactivity’ of NOT buying a General Motors car is having a ‘substantial effect’ on our economy. Henceforth all households must have at least one General Motors car.”

Is it not conceivable that Congress could tell you that you must buy a certain amount of “green energy” products, because the carbon foot print you are leaving is having a “substantial effect” on interstate commerce?

I do not relish in the future if this be Congress’ power. If this bill passes and is not shot down by the Supreme Court, it will be only a matter of time before the wrath of man will be exercised through your Congress to arrest your liberty piece by piece. Remember what Jefferson said: “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Instead of binding men down by the chains of the Constitution, we are freeing man from the chains of the Constitution. Surely we will pay for this with our liberty. Citizens of the United States, your government is taking your country down a path tread by thousands of tyrants before it—a path not intended by the Fathers of this country and the God that inspired them. Stand up and be heard. Reject the actions of your government as they have rejected your constitution, your traditions, your values, and your liberties. Not only tell them “no”, tell them “HELL NO!"

In closing, I believe that if healthcare reform is to take place, it should take place on the state level, and not on the "one size fits all" federal level. Instituting reform on a state level allows for the various states to act as "laboratories", to test out reform through trial and error, where state programs which have success can be mimicked by other states, and where state programs that fail can be avoided by others states. It also allows those states that don't wish to participate in the reform, not to do so. This is democracy. And it is in sharp contrast to the federal level, where reform is forced upon all of the states, and where there is only one shot to get it right, the consequences of which are to be felt by the entire country, and where the chance for repeal if the program is a failure is extremely slight.

And for what it's worth, if you're wondering how Congress could institute federal healthcare reform constitutionally, Congress might be able to do it simply by raising taxes sky high to pay for it. But because taxes are politically unpopular, and because Congress and the President are too cowardly to do it the constitutional way, they are instead seeking to do it through the unconstitutional method they have chosen, by forcing you to buy your own insurance. Cowards...


John said...

Hey Andy: great post and great constitutional analysis. I think this bill is horrible and bloated, but I need your help to understand something. Doesn't this bill actually impose a fine for not buying insurance? So this isn't forcing you to do anything but pay a fine. Does that have any effect on your analysis? I can't think of good specific examples of fines by the federal government for inactivity. (just small things like failure to pay taxes, failure to signal on the freeway, failure to register for the draft??). I agree with your points, I'm just worried the court might let it slide through a tax/commerce-hybrid loophole.

Andy said...

Yeah, I thought about that John. But I don't think it does anything to the analysis. Even if the punishment chosen for non-compliance is through an added tax it would still be unconstitutional. This is so because Congress will be using taxation as a method of enforcement and not as a method of paying for the program.

Enforcement is the executive branch's job, so once it gets to the enforcement stage of charging taxes upon non-compliers, the damage will already have been done.

In other words, an unconstitutional method for instituting a program cannot be righted through a constitutional method of enforcement. Otherwise, Congress could violate all sorts of fundamental rights simply by stating that the method of enforcement was constitutional.

But you're right, I too am very afraid of what the Court might do with this. Let's hope that Kennedy doesn't vote with the liberal end of the court.

Andy said...

Also, even if the court were to find this a valid exercise of its commerce clause power, I believe a case could be made that it's unconstitutional for three separate reasons.
1) It violates the right to privacy: In short, people have a right to privacy in what they choose to buy and not buy, and also a right to choose not to enter into contracts with a third person.

2) It violates the first amendment right to freedom of association by forcing people to associate with a third party by entering into a contract with that third party. And

3) It violates that 10th amendment by usurping traditional state police powers to regulate the "health, safety, welfare, and morals" or its own citizens. The right to regulate healthcare is a reserved power unto the states by virtue of the 10th amendment.

Tones Bones said...

Thanks for this Andy. I've not only read the whole thing...took me a while... but I'm going to link to it on my book of faces. Send all my thousands of friends your way. Ok, so maybe most of my friends are your friends as well. But I like that someone who thinks like me in a lot of areas was able to put this into context for me. I haven't had enough time to look into this myself, so this was a good condensation of the crap that is out there, from a source I can trust. We need to sit around and spew fiery words around Cokes sometime soon.

John said...

Thanks Andy, that makes perfect sense. I also wrote a long post about health care, but I looked at it from another angle.
My blog is at johnbergersthoughts.blogspot.com. I'd love to hear your thoughts. (It's the second post on there)

Mathias said...

Enjoyed this post. You have an ability to explain complex concepts in simple yet accurate ways. Thanks

Kylee said...

I read it and it just scared me more...thanks a lot hun. ;)

I feel bad for the farmer and so for that matter I feel bad for us-(that our country has come to this).

Lets pray it doesn't pass!

Robyn said...

Andy, I have to admit I wouldn't have read this post on my own, not because I'm not interested in the topic, but because it was long and I'm lazy. But thanks to Tyler's suggestion I did read it and it was great, it was also not boring. Thanks for helping me understand this better. If anyone asks me, be assured I will say "Hell No!"

Jenna said...

Somewhere I heard that even if you are fined for not buying the insurance, you would still be required to purchase it in addition to the fine...do you know if that is true? Or where I can find the answer?

Nice "article" by the way...found it through Kylee's facebook!

Andy said...

That's a good question Jenna. I'm not sure if they have added that in to this current bill or not. There has been so many changes over the past few months that it is hard to track them all.

Anonymous said...

nice job! waiting for your new artical...................................................

Jason said...

There's not a lot to add to what Andy has said here. To be a Constitutional nation or not to be. The Constitution shelters us from thugs who crave power and authority. Call your Congressman, fax him or her, go to his or her office and rally your friends. Go to www.house.gov and click on "Representatives" if you need your Congressman's information. Tell everyone you know. This is going to come down to a couple of votes. One vote could be the difference! If it passes, I don't trust enough justices on the Supreme Court to interpret this correctly when the thing is inevitably challenged. It's best to stop it now.

Chris Burton said...

Hey Andy,
I am not sure I am buying your argument here. I have two major concerns. First, it seems like you are drawing the activity that Congress is seeking to regulate too narrowly. In Lopez, the Court reviewed a law granting a person the right to sue a University for failing to punish students who raped her. The court didn't examine whether suing a private univerzsity for failiure to punish constituted an economic activity, they looked at the broader regulation of gender-based violence, and decided that it was not an economic activity that Congress was attempting to regulate. In the present case, Congress is not solely attempting to regulate whether or not you buy health insurance, they are regulating health care, and it seems to me that the court would look at the broader regulation o fhealth care and ask, "is this economic?"
I think that Gonzales v Raich further supports this position because in it the court refused to knock down part of the Controlled Substances Act even though it admittedly regulated something that did not constitute an economic activity for purposes of the commerce clause (the growing and smoking of homegrown marijuana that never left the great state of Claifornia). The court explicitly refused to look at whether growing and smoking your own pot was an economic activity but instead acknowledged that the Controlled Substances Act was an economic regulation, and therefore refused to cherry-pick the act and take out parts that may not be allowed under the commerce power, which seems precisely what you are advoctaing the Court do here. This brings me to my final concern which is in connection with one of your post-blog comments to John stating that Health Care Reform violates the 1st, and 4th Amendments. In your blog you state that states should be able to regulate health care, not the federal government. Yet in your comments you state that there are other Constitutional violations which would not be resolved if states regulated health care instead of the federal government. This is my biggest concern because it seems to me that you are saying that no one can regulate health care. The federal government can't because they lack the commerce power to do it, and states can't because it would be a violation of privacy and freedom of association. I cannot follow the proposition that no government entity has the power to regulate health care because it seems clear to me that the industry needs regulation at some level. I think you come closest to convincing me when you focus in on the word "activity" but I think that a broader view of the economic nature of the sphere the Act is trying to regulate (Health Care) is an activity, not an "inactvity" additionally, I think there are plenty of examples of the federal government having the power to enforece some activity (examples brought up by John as well as failure to shool your child) so I am not certain that the court would cherr-pick the Act based on "activity"

Andy said...

Chris, if you read carefully you will see that I never tried to analogize Lopez to the current issue. I merely used Lopez because it establishes the three prong test for issues re the Commerce Clause. In addition, you are thinking of Morrison, not Lopez as the case that resolved that Congress could not regulate gender based crimes, because the activity was not "economic."

As to your criticism, I find it unpersuasive. I never argued that Congress has no power to regulate healthcare in general. I could make that argument, but I chose not to here. I merely argue that the crux of this particular health care bill, the individual mandate, is unconstitutional. The very nature of the individual mandate is to compel those presently not engaged in a particular acitivity, to engage in that activity. This is by definition regulating inactivity, which has no basis in our commerce clause jurisprudence. You mentioned Gonzales v. Raich. What was the issue? The issue was whether Congress can regulate the intrastate ACTIVITY of growing and selling marijuana for medicinal use. In Wickard v. Filburn what was the issue? Whether Congress could regulate the ACTIVITY of growing and using wheat. In Lopez what was the issue? Whether Congress could regulate the ACTIVITY of carrying a gun within 1000 feet from a school zone. In Morrison, what was the issue? Whether Congress could regulate the ACTIVITY of committing gender based crimes.

Do you see a pattern here, because I do. Congress has not tried, and the Supreme Court has not held, that Congress may regulate INactivity.

The individual mandate at issue here is self explanatory in this regard. A mandate forces a citizen to DO something, where nothing is presently being done, whereas a regulation is a prohibition or limitation on something someone is already doing.

This also makes perfectly good common sense Chris. Do you honestly believe the founders envisioned the COmmerce Clause to mean anything but that Congress could not regulate any activity until it actually became a part of interstate commerce? Do you truly suppose that they had in mind that Congress could reach out with its long boney arm and grab someone in by the throat and compel them to be a part of interstate commerce? I am sure they did not have this in mind.

Andy said...

Lastly, your criticism of my privacy arguments are well taken, although I am not basing them off of the 4th amendment. I am basing them off of the "penumbra of rights" mentioned in Griswold v. Connecticut. The "privacy" rights established there were not rooted in the 4th amendment, which is why I disagree with these so called privacy rights. Nonetheless, it is the law and therefor applies to the instant case.

If in Griswold the Supreme Court could find that it was unconstitutional for a state to be able to tell a citizen whether or not they could purchase contraceptives, how is the present case ANY different (besides the fact that it doesn't support any progressive social agenda) that the federal government, which has LESS police power than the states do, to tell a person whether they must or must not buy healthcare?

Now you are right when you say that, privacy, being a fundamental right, would create a problem for any government, either state or federal, in forcing an individual to buy something, whether it be car or health insurance. However, as we know, the test required for restrictions on fundamental rights is strict scrutiny. I would argue that on a state level, requiring one to buy car insurance or healthcare insurance would probably meet a compelling government interest" as is required by strict scrutiny. This is especially true since both activities are activities that have been traditionally regulated by states under their ordinary police powers.

On the federal level it would be a harder sell. Healthcare, until relatively recently, was exclusively a traditional state function. I don't believe the Court should give the same deference to the federal government with regards to restricting this fundamental right of privacy as it would to state government.

The car insurance issue would be a different matter on the federal level. As we know, Congress has plenary power to regulate the "channels of interstate commerce." Because, cars take part in the channels of interstate commerce, the court would be justified in giving deference to the federal government in this area.

Now Chris, even if all of these claims failed, I still truly believe that healthcare is a reserved power for state regulation ONLY under the 10th amendment.
Indeed, the first state police power that is mentioned by the Supreme Court is a state's power to regulate the "health" of its citizens. The power to regulate healthcare is a power reserved to the states.

Anonymous said...

Excellent discussion by all participants.


Andy said...
This comment has been removed by the author.
Andy said...

Just to clean up what I wrote concerning a claim of violation of constitutionally protected privacy, I believe if the court is to be consistent at all with the "privacy rights" it has created, it must find that a right to privacy also exists to protect an individual's right to choose or not choose to purchase a particular product. Especially whereas here, the product is directly linked to the maintenance and control of one's own body, thus making healthcare insurance an inherently MORE private commodity than other products--certainly more privacy based than car insurance.

However, I believe a basic right of privacy exists to choose to buy or not buy a product. This privacy right is violated when a law compels people to buy something they may or may not want to buy. If such a law exists, it must meet strict scrutiny judicial review. This means that there must be a compelling government purpose and the law must be narrowly tailored to achieve that purpose. 

Now, having put more thought into it, I'd like to just return briefly to the discussion of car insurance. I don't believe the requirement to buy car insurance would be a violation of privacy because a person is not mandated to buy it in the same way as they are with healthcare insurance. A person can simply choose NOT to drive. Requiring car insurance is simply a privilege of the right to be able to use a car on public highways. Therefore, car insurance is less intrusive and would not raise the same privacy issues as does healthcare insurance.
 Unlike car insurance, which is a requirement ONLY of those who wish to use the public streets and highways, healthcare insurance is required of ALL citizens, regardless of whether that person uses the healthcare system or not. In this way, the requirement to buy healthcare insurance is far more intrusive than the requirement to buy car insurance.

Thus, as a violation of a right to privacy, the law requiring individuals to purchase healthcare insurance must meet strict scrutiny. Laws rarely pass strict scrutiny. And being that the law was passed under such partisan grounds, and by such back door dealing and shenanigans, it would be IMPOSSIBLE for the Justices to keep a straight face and say that the Court should give Congress “judicial deference” to their decision making. To give Congress deference in this instance would be a really, really bad joke.

Andy said...

I am amending my complaint (legal nerd talk) so as not to include a 1st amendment claim for violation of freedom of association. Having thought about it more, I don't believe that claim would get off the ground. 

I would thus stick to these three claims:

1) Outside the scope of the Commerce Clause

2) Violation of right to privacy

3) Violation of the 10th amendment

Also, note that these are just the "facial" claims against this bill. I can't even imagine how many possible "as applied" claims there are against this monstrosity.