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Opinion

Can Obama force you to buy health insurance?

Nothing in the Constitution allows the individual mandate he proposes.

By Anthony Gregory / September 14, 2009



Oakland, Calif.

Many liberals lambasted the Bush administration on detention policy and warrantless surveillance, often arguing that they violated the Constitution. Now the Obama administration is pushing ahead with plans to require every American to purchase health insurance.

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Doesn't that also violate the Constitution?

The Constitution created a federal government limited to its enumerated powers. Everything Congress is allowed to do is spelled out in Article I. The 10th Amendment makes it explicit: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Nothing in the Constitution authorizes any federal involvement in healthcare – yet Congress may soon require everyone in America to buy insurance.

Admittedly, the Supreme Court has ruled that the language empowering Congress to "regulate Commerce ... among the several States" applies to an ever-broadening range of activity. The "commerce" clause was originally intended to prohibit interstate tariffs, a supposed problem under the Articles of Confederation.

Ironically, consumers today cannot freely buy health insurance from across state lines. If there's any legitimate application of the "commerce" clause, it would be to overturn such restrictions. But the framers never gave Congress the general power to regulate industry.

In the 1935 case Schecter v. United States, involving farming regulations, the court unanimously struck down parts of the National Industrial Recovery Act for overstepping Congress's commerce power. Liberal Justice Louis Brandeis informed one of President Franklin Roosevelt's aides to "tell the president that we're not going to let this government centralize everything."

The next year, the court ruled in Butler v. United States that elements of the Agricultural Adjustment Act, which inflated food prices by restricting supply, violated the 10th Amendment.

After FDR threatened to pack the court with additional judges friendly to the New Deal, the court lost its spine. In 1937, it upheld the National Labor Relations Act – which greatly expanded the power of labor unions and greatly diminished the freedom of contract – under the "commerce" clause.

In Wickard v. Filburn (1942) the justices even upheld the conviction of a man for growing too much wheat on his farm. The court reasoned that even wheat grown solely for private consumption ultimately had an impact on the economy, turning the "commerce" clause into a regulatory rubber stamp.

The "commerce" clause is now interpreted very broadly. Although in United States v. Lopez (1995) the court struck down a firearms law that exceeded Congress's commerce power, it ruled 10 years later in Gonzales v. Raich that federal drug policy overrode California's medical marijuana laws, despite the 10th Amendment.

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