Why the Health Care Bills are Unconstitutional
”If the government can mandate the purchase of insurance, it can do anything.”
This is the ominous warning from the opinion page of the Wall Street Journal regarding the health care monstrosity that is rumbling toward final passage.
The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.
The article goes on to say that these are not the only constitutional issues with the legislation and that analysts, scholars and litigators have begun examining these three and other issues with Obamacare that may lead to future litigation.
First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress’s powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress’s power to regulate interstate commerce.
A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states’ obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed “cash for cloture” because it secured the 60 votes the majority needed to end debate and pass this legislation.
A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.
Read the entire article at The Wall Street Journal:
WSJ column written by: Orrin G. Hatch, a Republican senator from Utah, is a former chairman of the Senate Judiciary Committee. J. Kenneth Blackwell is a senior fellow with the Family Research Council and a professor at Liberty University School of Law. Kenneth A. Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
When they take out the public option that will allow the bill to constitutional then of course the bill will appear to be unconstitutional.
Reid health care proposal unconstitutional at any speed ~Congress has the power to tax income — not to limit it.
This is no longer about health care; Congress has no business limiting income by ordering private property to be given away to someone else.
Under Sen. Harry Reid’s proposed legislation, health insurance companies offering plans for large groups would have to spend on medical costs at least 85 percent of every dollar received in premiums (80 percent for small group and individual plans).
Income exceeding 15 percent of premiums received must be forfeited. How? Companies and stockholders that didn’t spend enough of their gross income from premiums would have to give their money away as “rebates” to their customers, essentially a massive socialist collective. Profit, overhead and executive salaries would be limited to 15 percent by the federal government. The federal government would demand reports to ensure this private property is given away to the collective.
According to this communist-like “central planning” proposal, only 15 percent of every dollar of private income received in premiums may be kept. But this money is private property. It is earned by and belongs to the business enterprise and its stockholders. It isn’t play money for the Congress to dole out like an Orwellian Big Brother.
The right to possess and enjoy income is an incident of ownership; a right held by the health insurance business enterprise and its owners, the stockholders. This property is the fruit of an inalienable and naturally endowed right of liberty, a constitutionally protected right that does not find its source in the central government.
This attempt to seize profits and income — which become upon receipt the vested property of a business enterprise and its stockholders — cannot stand. It unconstitutionally seeks to sequester privately owned property for subsequently imposed transfers to those who have no ownership rights in the same. According to “Father of the Constitution” James Madison: “Money cannot be applied to the General Welfare, otherwise than by an application of it to some particular measure conducive to the General Welfare. Whenever, therefore, money has been raised by the General Authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. ”
Under our Constitution the central government can tax income, but it has no power to limit income by ordering private property transferred to another person. Profit is a consequence of our liberty secured by the Constitution. Profit is the wages of the risk-taker.
If we allow this seizure of seize profits and income to occur, before you know it the leftist central committee will decide they can limit everyone’s income. Sound farfetched? I think not. Unlike the Obama administration’s pay czar, who only limits executive pay in taxpayer bailed out companies, the AP reported on Oct. 22 that the Federal Reserve for the first time would police bank pay policies even if the banks did not receive bailout funds. In fact, the Federal Reserve has already advised executives of the top 28 firms to begin reviewing their compensation packages with the objective of having their structures in alignment with the Federal Reserve “guidance” by Feb. 1, 2010.
Concededly, Congress has power to regulate interstate commerce and even tax the income generated there from; thus lessening profits and income, yet the income itself, when made and received, is company and stockholder property. And, like other property, it cannot be taken at the whim of Congress or be ordered transferred to others.
According to the World Book Encyclopedia, 1947 edition, one of the chief characteristics of former fascist governments is: “They began to limit profit, impose capital levies, and regulate business in great detail.”
As Judge Napolitano of Fox News recently stated, the government is embarking down a slippery slope and if this is not challenged and we supinely accept it out of fear, then we are a nation of sheep.
I agree.