Constitutional Healthcare: Speaker of the House Nancy Pelosi Has Claimed That the Federal Government's Intervention into Healthcare Is Justified by the Interstate Commerce Clause

Article excerpt

The Speaker of the U.S. House of Representatives was apparently dumbfounded recently when a reporter asked about the constitutional authority for requiring people to buy health insurance, as mandated in the healthcare reform bills before Congress.

As reported on, the exchange between the reporter and Speaker Nancy Pelosi (D-Calif.) was as follows:

"Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?"

"Are you serious? Are you serious, came the Speaker's inscrutable reply.

"Yes, yes I am," the reporter answered. Pelosi then simply shook her head and took a question from another reporter. Pelosi's press secretary, Nadeam Elshami, later said that asking the Speaker where the Constitution authorized the mandate in the health bills was not "a serious question."

"You can put this on the record," the news organization quotes Elshami as saying. "That is not a serious question. That is not a serious question." The spokesperson later responded to written follow-up questions, reported, with an e-mailed press release on the "Constitutionality of Health Insurance Reform," claiming congressional authority for the mandate may be found in its constitutional power to regulate interstate commerce.


A "Health Insurance Reform Daily Mythbuster" press release, originally issued from Pelosi's office on September 16, claims one of the "myths" about the House bill called "America's Affordable Health Choices Act" is what Pelosi called "the nonsensical claim that the federal government has no constitutionally valid role in reforming our health care system--apparently ignoring the validity of Medicare and other popular federal health care reforms." The Speaker acknowledged that under the House bill "individuals must either purchase coverage (and non-exempt employers must purchase coverage for their workers)--or pay a modest penalty for not doing so. The bill uses the tax code to provide a strong incentive for Americans to have insurance coverage and not pass their emergency health care costs onto other Americans--but it allows them to pay their way out of that obligation. There is no constitutional problem with these provisions," she concluded.

Parrying Pelosi

Pelosi categorized as "myth" the argument that the health-insurance legislation violates the Constitution's Tenth Amendment, which reserves to the states or to the people those powers not delegated to the national government. "But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce," Pelosi argued. "Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the health care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited."

Pelosi cited a pair of Supreme Court decisions that upheld the power of Congress under the commerce clause to ban racial discrimination (Katzenbach v. McClung) and to forbid the growing and sale of marijuana for medical use where state laws allow it (Gonzales v. Raich).

But a 1994 Congressional Budget Office analysis of the budgetary impact of healthcare legislation then before Congress included a finding that an act of Congress requiring individuals and employers to purchase health insurance or pay a fine would be unprecedented. In the words of the CBO memo: "The imposition of an individual mandate, or a combination of an individual and an employer mandate, would be an unprecedented form of federal action. The appropriate budgetary treatment of such a policy therefore has not been addressed."


The healthcare reform efforts of the early nineties were never enacted by Congress, and popular resentment of what was seen as excessively intrusive regulation, promoted by the Clinton administration, contributed to a Republican landslide and takeover of Congress in the 1994 elections. …