Obamacare Carries Too High a Price in Liberty; Forcing Purchase of Health Insurance Not Grounded in Constitution
Byline: Sen. Orrin G. Hatch, SPECIAL TO THE WASHINGTON TIMES
In October 2009, a reporter asked then-House Speaker Nancy Pelosi, Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate? She responded, Are you serious? Few questions could be more serious, and this week, the Supreme Court is spending three days exploring this and several other questions about the legitimacy of Obamacare, the president's signature achievement and the largest expansion of government in generations. This case is not about health care policy but about whether we still have a real Constitution. Two principles are at stake. First, as George Washington put it in his farewell address, the basis of our system of government is that the Constitution .. till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all Second, as the Supreme Court put it in Marbury v. Madison seven years later: The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. This case is about whether our written Constitution still defines and limits federal power until the people say otherwise.
Measured by that standard, Obamacare's insurance mandate is unconstitutional. This is the first time in American history that Congress is forcing Americans to purchase a particular good or service. More important than identifying a precedent for the mandate, however, is identifying a power for Congress to enact it. The only candidate is the power to regulate interstate commerce. The insurance mandate does not regulate commercial or commerce-related activities but decisions whether to engage in those activities.
Decisions whether to purchase goods or services obviously have economic consequences, and Congress uses incentives to influence purchasing decisions. Remember the cash for clunkers program? But if Congress has the power to dictate purchasing decisions, it simply could have required Americans to purchase new cars to help the auto industry. The difference between activities and decisions, between incentives and mandates, is far more than a difference of political degree; it is a difference of a constitutional kind. …