ObamaCare Or The Constitution: One Must Fall

Originally Posted At Forbes.com
By Lawrence A. Hunter, Ph.D.
February 12, 2012


The Patient Protection and Affordable Care Act (ACA) contains a provision (the Individual Mandate) that compels under penalty of law the uninsured who are not participating in any interstate market for health insurance to purchase from private insurance companies comprehensive health insurance complying with all of the benefit mandates and other requirements of the ACA and certified by the federal government as meeting all the requirements of the Act.  In defending the constitutionality of the Act, the United States Government relies upon the Commerce Clause of the Constitution as the enumerated power supposedly delegating authority to the federal government for this regulatory compulsion.

The Social Security Institute has joined with the American Civil Rights Union and the Tenth Amendment Foundation in submitting the second of two Amici Curiae briefs to the Supreme Court challenging the constitutionally of the ACA.  The arguments, in part, set forth in that brief follow:

Two years after the Constitution was ratified, James Madison explained succinctly on the Floor of the U.S. House of Representatives why Congress cannot rely on the Commerce Clause in conjunction with the Necessary and Proper Clause to authorize by implication any act as sweeping and all encompassing as the ACA. Not only does such an act exceed the limits of congressional authority under the Constitution, it also would undermine the Constitution itself by vitiating other foundational tenets upon which it rests:

“. . .the power. . .exercised in the bill, [it] could never be deemed an accessary or subaltern power, to be deduced by implication, as a means of executing another power; it was in its nature a distinct, an independent and substantive prerogative, which not being enumerated in the constitution could never have been meant to be included in it, and not being included could never be rightfully exercised.”

The Commerce Clause grants Congress the power to regulate interstate commerce; it does not grant Congress the power to compel individuals to enter into interstate commerce. The Congress itself has recognized this limitation for 220 years; never before has it enacted a law compelling individuals to purchase particular products and services. Anything like that (such as mandatory automobile insurance) always before has been recognized as a prerogative of the police power reserved to the states.

No precedent, judicial or legislative, exists upholding anything like the power of Congress to impose an individual mandate compelling all citizens in America to purchase particular products and services.

Upholding the individual mandate here would leave no principled limit on the federal government’s powers. As a result, it would demolish two of the most fundamental doctrines of the Constitution: 1) The federal government is limited to delegated, enumerated powers; and 2) All powers not delegated to it are reserved to the states respectively or the people. Upholding the individual mandate in this case would require tearing down these two fundamental pillars of the entire constitutional architecture, like blind Samson pushing over the pillars of the temple, causing it to collapse on the heads of everyone inside.

Every economic decision an individual makes, when aggregated with the economic decisions of everyone else, combines to substantially affect interstate commerce in the way the federal government is asserting here. The federal government is claiming with the ACA the unlimited power to control every economic decision every individual makes, which not only is a fantastic over reach of its constitutional authority but also a claim to possess the power to destroy the very Constitution from which it supposedly derives the authority to exercise the power. 

In other words, the national government claims the Constitution grants Congress the power to destroy the Constitution.  Ergo, the ACA and the Constitution cannot both stand together so one must fall. 

The unlimited Commerce-Clause power the government claims here would be indistinguishable from a national police power, with the federal government authorized to regulate and enforce order to advance any vision of the general welfare, morals, health, and safety it may conceive. But if the federal government were considered to hold such a national police power, then the concept of enumerated, delegated powers to the federal level, with traditional government powers otherwise remaining with the states, would be obliterated. All distinctions between federal power and state power, and any scope for state sovereignty, would be demolished.

Madison was clear in Federalist # 45 that the Constitution did not delegate general police powers to the national government.  He wrote that federal powers “will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . .The powers reserved to the several states will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.”

Madison’s objection to fabricating new federal powers by a chain of logical implications fits the current situation closely: “The doctrine of implication is always a tender one.  Mark the reasoning on which the validity of the bill depends:” Providing access to and controlling the cost of health care are made the ends and heavily regulating insurance companies implied as the means. Heavily regulating insurance companies is then the end and preventing heavily regulated insurance companies from failing financially implied as the means. Preventing heavily regulated insurance companies from failing financially is then the end and universal coverage implied as the means.  Universal coverage is then the end and the individual mandate implied as the means.  “If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy.”

By making the power of the national government essentially unlimited, the logic required to sustain the ACA would squeeze the life from the constitutional framework of federalism, a cornerstone of the Constitution. That is why the Supreme Court has always ruled that the police power belongs to the states and not the federal government.  As Justice Kennedy explained in U.S. v. Comstock, “[t]he Constitution created a Federal Government of limited powers [and] withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.”

Perversely, the individual mandate compels individuals by law to purchase health insurance sold only within completely intrastate markets, a regulatory compulsion that by its very construction fails to involve the regulation of interstate commerce, which presumably authorizes the mandate in the first instance.  If the ACA is allowed to stand, Madison’s feared “chain of implications, remote and multiplied” will result in a contradiction:  The Constitution, which was designed to limit and regulate the national government, gives that same government the unlimited power to destroy the Constitution itself.

All of the foregoing reasons led the Eleventh Circuit Court of Appeals to conclude that, “[t]he federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.” All of the foregoing reasons compelled the District Court for the Eastern District of Virginia to conclude “the individual mandate is neither within the letter nor the spirit of the Constitution.” And, these are the reasons the Supreme Court must find the individual mandate unconstitutional to preserve the fundamental integrity of the Constitution.

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