A careful reading of the US Constitution shows no authority for
the new health-care law's mandate to buy private insurance.
When asked last fall where the Constitution authorizes Congress
to require citizens to buy health insurance, House Speaker Nancy
Pelosi was temporarily caught off guard, finally sputtering, "Are
you serious? Are you serious?" She then quickly turned to another
reporter without further comment.
Another Democrat, Rep. Phil Hare of Illinois, reacted similarly
when recently posed that question by one of his constituents: "I
don't really worry about the Constitution on this, to be honest."
While the thought that the Constitution actually limits the power
of Congress to enact legislation may be foreign to some Democrats,
the framers of the Constitution intended for the federal government
to be limited to the powers that are specifically enumerated, or
listed, in the text of the document.
In the Federalist Papers, James Madison wrote: "[T]he proposed
Government cannot be deemed a national one; since its jurisdiction
extends to certain enumerated objects only, and leaves to the
several States a residuary and inviolable sovereignty over all other
In part to protect that sovereignty, more than 20 states have
challenged the constitutionality of the new federal health-care law.
Several have even moved to pass amendments to their constitutions
that would forbid any law that forces citizens to participate in a
The outcome of these radical efforts to affirm the guaranteed
rights of states and individuals will have huge consequences for the
very character of America.
Key constraint: enumerated powers
Because the federal government is composed of - and constrained
by - enumerated powers, then the power to regulate health care would
have to be one of the powers specifically given to it in the
Out of the 17 named powers given to Congress in Section 8 of
Article 1, however, none mentions anything about heath care,
insurance, doctors, medical treatment, or anything approaching an
enumerated power that would allow Congress to legislate our health.
Then how is it that Democrats can claim the Constitution permits
the new health-care law? They point to two constitutional provisions
as their grant of authority to enact health-care legislation.
The first enumerated power claimed by Democrats is the "general
welfare" clause. House majority leader Steny Hoyer, for instance,
said that Congress has "broad authority" to provide for the general
welfare. The term "general welfare" appears twice in the
Constitution, once in the Preamble and another time in the "tax and
The Preamble to the Constitution, however, has never been
considered a grant of power to the federal government. As the
Supreme Court has put it, "[a]lthough th[e] preamble indicates the
general purposes for which the people ordained and established the
Constitution, it has never been regarded as the source of any
substantive power conferred on the government of the United States."
The tax and spend clause, however, is an enumerated power given
to Congress in the Constitution. It reads in part, "[T]he Congress
shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States."
To read the term "general welfare" in the clause to be a broad
grant of authority to Congress to tax for whatever purposes it deems
are in the general welfare of the country would be to make a mockery
of the Constitution. …