Lee: Obamacare’s Backward Approach to the Constitution

Posted March 23, 2012 at 12:38pm

I grew up learning about the Constitution. In fact, as unique as I now realize this was, my family’s dinner conversation often centered on discussion of various constitutional provisions. From an early age, I gained a deep appreciation for the genius of our republic’s founding document.

I learned of how the framers, through their own experience with a distant, tyrannical government in London, recognized the critical importance of limited government. They understood that British tyranny was not an accident of history — that England was not the only government capable of oppression. Rather, as students of human nature, the framers recognized the reality that a government of men, left unchecked, would naturally tend toward tyranny.

Accordingly, the Constitution they fashioned to structure the new American government did not begin with a presumption that the national government possesses all power — that it was authorized to enact any legislation it could dream up. Rather, that great founding document properly begins with the opposite presumption — that the federal government is not authorized to exercise any power except those that the Constitution expressly grants. Accordingly, prior to enacting a piece of legislation, Congress must deliberately and conscientiously determine whether the proposed exercise of federal power is authorized and, if so, which provision of the Constitution grants that authority.

In the case of Obamacare, however, it is plain that President Barack Obama and the Democratic Congress did not begin the process by determining what the Constitution did and did not authorize them to do. Rather, they determined first what they wanted to accomplish — regardless of how intrusive or burdensome that action might be — and have since been in search of a potential constitutional justification to hide their unauthorized power grab.

This post-hoc search for a basis on which Obamacare might be considered constitutional is futile. In fact, attempts to justify that legislation only highlight how far beyond legitimate bounds of federal government power Obama and the
Democratic Congress went in enacting that law.

Central to Obamacare is its unprecedented mandate that every individual in the United States purchase and maintain health insurance at all times. Nowhere does the Constitution countenance the novel and remarkable theory that the federal government may tell citizens what they must purchase. Tellingly, Obamacare marks the first time in our country’s constitutional history that the federal government has asserted such an extraordinary power.

None of this, however, has prevented creative apologists from attempting to justify the individual mandate by expanding, twisting and contorting provisions of the Constitution to their liking. Many proponents of Obamacare rely primarily on the Commerce Clause, which authorizes Congress to regulate commerce “among the several states.” This is a narrow grant of authority, directed specifically to commerce and delimited to the subset of such activity that occurs in interstate transactions. No reasonable construction of the text of the Commerce Clause can lead to the conclusion that the Constitution authorizes Congress to regulate any and all affairs of human life throughout our nation, let alone personal decisions such as whether to purchase health insurance.

For the Commerce Clause to authorize Obamacare, it would have to be rendered meaningless — allowing the federal government to regulate all (not just interstate) commerce and authorizing lawmakers to compel individuals to enter into that commerce in the first instance. Absent a constitutional amendment, the Commerce Clause simply cannot be used to justify the enactment of Obamacare without doing great violence to the text, tradition and purpose of the Constitution.

No doubt cognizant that the plain meaning of the Commerce Clause does not authorize the individual mandate, advocates have looked to other provisions for support. But these desperate attempts likewise fail to honor the text, purpose and original meaning of the Constitution. For example, the Constitution authorizes the government “[t]o lay and collect Taxes, Duties, Imposes and Excises.” But Obamacare’s individual mandate is not a tax, and the distinction matters. Voters don’t like burdensome taxes, and there is good reason to think that Congress would not have passed the law had the individual mandate been structured and labeled as a tax.

The Constitution also grants Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” other federal powers. But there is no constitutional aspect of Obamacare that the individual mandate carries into effect, and Congress may not use an unconstitutional law to carry into execution an unconstitutional law. If Obamacare were considered constitutional under the Necessary and Proper Clause because Congress needs exceptional powers to carry into effect coercive government laws never authorized by the Constitution in the first place, then there is literally no limit to the federal government’s powers.

The arguments made by proponents of Obamacare thus turn the Constitution on its head and would create a federal government of unlimited power. What the Constitution actually authorizes is a federal government of limited, enumerated powers. None of the federal government’s enumerated powers authorizes the kind of government coercion imposed by Obamacare, and the individual mandate is unconstitutional.

Sen. Mike Lee (R-Utah) is a member of the Judiciary Committee.