Hanna: Three Reasons Obamacare Is Unconstitutional

Posted April 2, 2010 at 3:53pm

Conservatives are mounting legal challenges to the recently passed Obamacare health insurance bill on the grounds that it is unconstitutional: that the scope of the bill exceeds the scope of the federal government. Fourteen state attorneys general have filed a challenge, radio talk-show host Mark Levin has filed another through the Landmark Legal Foundation, and several others are in the works. The left smugly dismisses all of these as without merit and claims that Supreme Court precedent provides clear guidance that the bill is constitutionally sound. However, it does not take a constitutional scholar to examine these claims and identify fatal flaws in each one.

[IMGCAP(1)]The argument most often cited is that the bill’s mandate that every citizen must purchase health insurance is excessive, and that Congress lacks the authority to compel people to purchase health insurance or pay a tax or a fine.

Supporters of Obamacare counter that Article I, Section 8 of the Constitution gives Congress the power to regulate activities that have a substantial effect on interstate commerce. Read what Erwin Chemerinsky, dean and professor at the University of California Irvine School of Law, wrote in the Los Angeles Times: “The Supreme Court has held that this means Congress has the ability to regulate activities that have a substantial effect on interstate commerce. A few years ago, for example, the court held that Congress could prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce.”

However, this argument is fallacious on its face. Most health insurance — nearly all of it under current practice — is not sold on an interstate basis. I’m in favor of opening up health insurance sales to the broadest possible competitive marketplace, which means interstate sales, but the current practice is that insurance is regulated by the states and the vast majority of it is not interstate commerce at all: It is intrastate, and thus beyond the reach of the Constitution under the 10th Amendment unless the federal government specifically prohibits the states from regulating it.

The second argument is that Congress can regulate many kinds of economic activity not foreseen in the 18th century when the Constitution was written — but that argument ignores the fact that the Obamacare mandate is enforced by levying a tax or fine on someone who does not purchase qualifying health insurance. That is not regulating economic activity — it is regulating economic inactivity, an entirely different matter.

Finally, Chemerinsky makes another haughty claim that Obamacare and its mandates are similar to Medicare. His exact words are, “Congress has broad power to tax and spend for the general welfare. In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress’ power. The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid.

“Congress has every right to create either a broad new tax to pay for a national health care program or to impose a tax only on those who have no health insurance.”

Notice the word “tax.” The Supreme Court has accorded Congress broad powers to tax. The Medicare tax is indeed a tax — money extracted from a citizen under power of law and given to the government. Obamacare would extract money from a citizen under power of law and give it to a private company, an insurance company. That is not a tax — it is extortion, and the mere fact that the government mandates it does not make it a tax. It is the forced purchase of a consumer product. No such economic tyranny can be justified by the Constitution. I’ll grant you that this line of reasoning could lead to a very bad place — the conclusion that it’s only constitutional if the money is kept by the government through some government-run single-payer system — but that’s another argument for another day, and unlikely to prevail as a political matter.

So don’t let the media convince you that Constitutional challenges to Obamacare are without merit. It is the arguments of those who attempt to defend Obamacare on Constitutional grounds that are without merit.

Colin Hanna is president of Let Freedom Ring, a conservative grass-roots organization.