Is ObamaCare Constitutional?
During the Bush administration, many within the dominant culture expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.
Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.
But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.
In fact, the constitutional difficulties are profound. This is certainly so for those who believe the Constitution means what our Founders understood it to mean. But it is even true for those interested only in modern Supreme Court jurisprudence.
Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law:
Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document. (The exact number depends on how you count.) None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories.
To be sure, since the late 1930s, the Supreme Court has been tolerant of the federal welfare state, usually justifying federal ad hoc programs under specious interpretations of the congressional Commerce Power. But, except in wartime, the Court has never authorized an expansion of the federal scope quite as large as what is being proposed now. And in recent years, both the Court and individual justices – even “liberal” justices – have said repeatedly that there are boundaries beyond which Congress may not go.
The greatest Chief Justice, John Marshall, once wrote that if Congress were to use its legitimate powers as a “pretext” for assuming an unauthorized power, “it would become the painful duty” of the Court “to say that such an act was not the law of the land.” But health care bills such as the Obama-favored HB 3200 do not even offer a pretext. The only reference to the Constitution in HB 3200 is a severability clause that purports to save the remainder of the bill if part is declared unconstitutional. HB 3200 contains no reference to the Commerce Power or to any other enumerated power.
Excessive Delegation. The Constitution “vests” legislative authority in Congress. Congress is not permitted to delegate that authority to the executive branch. This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits. Thus, in Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations in some current health care proposals.
Substantive Due Process. The Substantive Due Process doctrine was not contemplated by the Founders, but the courts have engrafted onto constitutional jurisprudence. The courts employ this doctrine to invalidate laws they think are unacceptably intrusive of personal liberty or privacy. The most famous modern Substantive Due Process case is Roe v. Wade, which struck down state abortion laws that intruded into the doctor-patient relationship. But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200. “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.
Tenth Amendment. Technically, the Tenth Amendment is merely a declaration that the federal government has no powers beyond those enumerated in the Constitution. However, the modern Supreme Court has cited the Tenth Amendment in holding that Congress may not “commandeer” state decision making in the service of federal goals.
It is permissible for Congress to condition grants of funds to the states, if the conditions are related to the funding program and are not “coercive.” Thus, in 1986 the Court ruled that Congress may, because of highway safety issues, reduce highway grants by five percent to states refusing to raise their drinking ages to 21. But the mandates that some health care plans would impose on states certainly could be found “coercive,” both because they are excessive (HB 3200, for instance, would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.
A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power. National health care proposals would increase that power greatly, so it is not surprising that those proposals have constitutional difficulties. Whatever the merits of federal control of health care, moving in that direction is (as former Justice David Souter might say) a change of “constitutional dimension.” The proper way to make such a change is not through an ordinary congressional bill. The proper way is by constitutional amendment.
UPDATE: Welcome Instapundit readers. Thanks, especially, for commenting! Look around and stay awhile…
You can find more about Professor Natelson here.
I have often wondered how the founding fathers would have handled health care if decent medical science had existed at the time. My guess is that they would have written it right into the Constitution.
“My guess is that they would have written it right into the Constitution.”
How convenient.
My guess is that they would have left it to the states, pretty much as they did everything else.
Neither guess matters; it’s not in there, and that means it’s unconstitutional.
David Crisp . . . what an arrogant, uninformed answer. Here’s what I
think.
My guess is that they would make space aliens pay for, as they obviously have a more advanced technological society, because they can warp time. That’s my guess.
Well, isn’t there a penumbra somewhere in there that says that the govt may not interfere in a medical procedure due to the patients right of “privacy”. I coulda sworn there was.
David, I’m sure they thought then, even as we do now, that they were on the cutting edge of medical science. They probably felt the same way about their education system, but they didn’t include that into the Constitution either.
One of their primary concerns was that the government not quarter soldiers in the homes of citizens. (3rd ammendment). Seems to me that if they wanted soldiers out of the kitchen they’d want legislators out of the consulting room too.
My guess is that they wouldn’t.
It is in the Constitution. 10th Amendment: “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.”
What’s not to understand about that? The drafters were federal powers minimalists.
Do you honestly think the democrats care about the Constitution?
The founders would have looked at people holding entitlement views with utter contempt. They were in the process of cutting off the chains of a tyrant, not clamping them on.
[...] A look at the constitutionality of proposed health care reform from the Obama administration and the Democratic-controlled Congress. [...]
I’ve wondered about equal protection issues with medical review boards deciding who gets access to which treatment based on age.
Jody (11) I think that some wise Latinas will sort out the answer to your question.
Don’t forget about the First Amendment … guaranteeing freedom of religion.
One of the essential provisions of “ObamaCare” is what is euphamistically called the “individual mandate.” What that is in plain English is requiring people to purchase health insurance. But that is against the religious beliefs of a large number of people – millions of them Muslims, but also Amish, Mennonite and some other religions.
You can force a Jew to purchase insurance, but you cannot force a Muslim to.
So, in this way, ObamaCare is anti-semetic and un-Constitutional to boot.
> My guess is that they would have written it right into the Constitution.
Would have, could have, should have.
Didn’t.
Interesting intellectual argument, but if we’re waiting for the SCOTUS to save the country from this federal power grab we will wait in vain. They are our rights, and it is up to us to push back against those who would constrict them.
REPLACE THE CONGRESS!
My guess is that they would have treated it like every other service provider. Note all the clauses that mandate free chimney sweeping, log splitting, waste hauling, wick trimming and sundry.
If they wanted to make service providers slaves to public whim they would have spelled it out. if you go in for treatment and they refuse you for any reason other than a lack of money you may have an actionable cause. Other wise shut up and take what you have earned.
“My guess is that they would have written it right into the Constitution.”
They sure had a lot of poor people and widows with children back then, so what did they put in about welfare? Zip.
Heck! They didn’t even put in an income tax, nevermind things like Social Security taxes or Medicare taxes.
They didn’t even put in the right to privacy that the Supremes found many years later. Privacy is never mentioned but somehow the Supremes could read the minds of long dead founders and “just knew” that the founders must have meant that.
Basically the founders said “You’re on your own and we won’t stand in your way if you want to advance yourself” That’s all they said.
Don’t forget Roe v. Wade and the notion that matters between a women(or man) and their doctor are private and thus beyond the purview of the gov’t.
Thank you for giving voice to this question. It seems that the Obama administration has little regard for the Constitution. A mighty battle between the branches of government may lie ahead.
[...] the proposed National Healthcare system constitutional? Some say it’s not. It’s an interesting argument based on the Enumerated Powers clause and something I have [...]
Call me a cynic, but I don’t see how it matters.
Is SS constitutional? Is Medicare constitutional? Is the EPA constitutional? Are the Departments of Agriculture, Energy, and Education constitutional? Are subsidies constitutional? Is McCain/Feingold constitutional?
It has long since ceased to matter. All that matters now is power.
Sparky writes
Heck! They didn’t even put in an income tax, nevermind things like Social Security taxes or Medicare taxes.
Actually Sparky, the Founders did in an indirect and negative fashion. That’s why we needed a constitutional amendment before a Federal income tax could be legal. Unfortunately, we got one.
I have already remarked on several Internet fora the irony of having the same folks who have been claiming that abortion ought to be a private matter between a woman and her doctor now starting to claim (explicitly or otherwise) that every other medical decision ought to become a matter for your loving, caring federal bureaucrat.
I say this: KEEP YOUR LAWS OFF MY BODY!
If that’s an idea good enough for the pro-abortion crowd, it’s an idea good enough for everybody.
Cannot the same arguments be made about owning GM and setting compensation limits for executives? Or giving Chrysler to the union?
This is obviously an important point, but my sense is that the horse left this barn long ago. Congress and the Executive have trampled the enumerated powers for so long, it’s hard to see how they could ever be resurrected without declaring enormous portions of the federal government to be outside the powers called out in A1S8. Recall the gasps of disbelief when the Lopez decision was handed down, then multiply by a trillion.
[...] Obamacare, that is. Not that Obama cares. Have to break eggs to make an omelette, doncha know? [...]
“Constitutionalists” are wasting their time because they fail to recognize the essential truth about Abraham Lincoln’s war — it overthrew the Constitution and American Republic of 1789 by destroying the system of dual sovereignty… ending any hope of citizen control over their own government.
“The War between the States” forcibly established that the central federal government is the final judge of its own powers.
Thomas Jefferson and other founders always understood that if the day were ever to come when the federal government would become the final judge of the limits of its own powers, then it would eventually decide that there were, in fact, no limits to its powers.
That day arrived long ago. Get used to your shackles.
ELC writes:
I have already remarked on several Internet fora the irony of having the same folks who have been claiming that abortion ought to be a private matter between a woman and her doctor now starting to claim (explicitly or otherwise) that every other medical decision ought to become a matter for your loving, caring federal bureaucrat.
Yes. Lenin coined the term for the people who don’t, won’t, or cannot understand the contradiction in such a situation–”useful fools.”
Roe v Wade has now institutionalized many Constitutional protections regarding the “patient-doctor” relationship that fly in the face of many of the cost cutting aims of ObamaCare. On the flip side, the government paying for abortions will also undermine the “privacy” (“government off our bodies”) justification, as outline in the Roe decision, for many of those Constitutional protections.
[...] Is it Constitutional? Posted in Death to Liberty! by Mike Aug 17 2009 TrackBack Address. Of course not. But when that ever mean a thing to a Democrat Socialist? During the Bush administration, many [...]
The question does not matter…the left has not considered the document for decades other than as a throw away line when attacking conservatives…
However, Lincoln knew that the practice of slavery would eventually destroy the country. “A house divided against itself cannot stand”. We are fortunate that the Civil Rights Amendment in the 1960s did not cause a split. This administration may be forcing another crisis. When the majority of the country does not want what the administration and Congress are doing, there is going to be a problem if they don’t stop pushing.
Personally, I don’t want to see another Civil War.
I only wish Congress and the Executive (and, heck, the Judiciary) concerned themselves with Constitutionality. That ship sailed decades, if not centuries, ago. It was an interesting experiment.
Is Obamacare Constitutional?…
Independence Institute Senior Fellow (and University of Montana constitutional law professor) Rob Natelson suggests not, in this blog post.
Natelson puts aside the quest……
Most important and yet disregarded concept of this article: “A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power.”
Obama is already on record complaining that the Constitution is a list of “negative liberties” keeping government out of our lives.
http://www.americanthinker.com/2008/10/negative_liberties_and_obama_n.html
And the Tenth Amendment is by far the most ignored piece of the Constitution.
Result? A Congress that has spent 2,000 billion dollars more than it has brought in.
I think Alexander Hamilton nailed it when he said a Bill of Rights would destroy the intent of the Constitution by inverting the assumption that it was a list of enumerated powers and broad rights into one of enumerated rights and broad powers. Freedom of the press, religion, etc. exist today only because of the First Amendment…that was not the intent.
[...] Fellow (and University of Montana constitutional law professor) Rob Natelson suggests not, in this blog post. (Which is cross-posted on the blog of Ind. Inst. President Jon [...]
Is ObamaCare constitutional? What a truly archaic question! The commies Democrats do not care one whit! After all, if it was good enough for Uncle Joe, it must be good enough for everyone!
Guess you got that popularity you so desperately yearned for there, Rob.
I do have to ask an honest question, though …
How much good is a defense of the Constitution if you have to lie your ass off to offer it?
See, the lies are obvious. First, you call it “ObamaCare”. That’s a bold faced lie. President Obama hasn’t endorsed any particular bill currently proffered from Congress. He hasn’t written any bill offered to Congress. The ‘bill’ he appears to favor is from the Senate Finance committee and hasn’t been written yet. So, calling reform “ObamaCare” is complete and utter bullpucky, isn’t it?
Second, you remain completely incapable of showing how any bill before Congress would actually put the Government “between” a person and their doctor. You are relying on popular rightwing pap to make a point about the Constitution. Not very honest of you, Rob. Not at all, in fact. See, I have read HB 1300, and you know what isn’t there? Any of the BS you assume to be true for your exposition.
Third, you claim as fact that Obama favors HB 1300, and you have no evidence save your own say-so. In Belgrade, just the other day, he seemed much more enamored of the compromise that the Senate Finance committee has worked out, you know, that bill that hasn’t been written yet? No no, it’s clear that you have no use for facts, but you should at least pay an homage to reality if making a Constitutional argument. Wouldn’t you agree?
Fourth, and this is the most egregious of your lies, you allude to the fact that the legislative branch is abdicating their power to legislate, and you show not even once how they are doing so. They have the power to make law and spend for it. Obama has never challenged that, nor has Congress given it up in any health care legislation currently under consideration. You’re a law Professor; you know this. Must the lie be so deep? Just as an aside, I did notice that when Congress handed GW the ability to declare war, we heard not one peep from you. Not one. No letters to the editor. No posting online. Nothing. I’m not saying that you’re a hypocrite, but this lie of excessive delegation goes so deep with you, one has to wonder.
Enjoy this cesspool of commenting that your new found fame has brought you, Rob. I mean that, sincerely. But please keep in the back of your mind that there are at least a few of us who see how full of it you really are.
It would be incoherent to claim that abortion is uniquely protected by an individual right to privacy but that no other medical procedures are or can be, but that’s the requirement if one is to square Roe v Wade with government-run health care.
For the record, Wulfgar, I submitted the link to Instapundit, not Prof. Natelson.
Interesting article, and one I have recommended elsewhere.
As to whether the Founders would have put it in the Constitution, my guess is that they would not have. They would have left this to the States, which could have properly considered the issue. This fits in nicely with the federalist structure of the Constitution prior to the 17th Amendment.
However, Constitutional issues aside, this bill is badly thought-out. Health care reform is a real issue, but we are better served with the conservative (small c) approach of incremental change rather than the innovative approach of replacing autochthonous systems with newly engineered beaurocracies. We would be better off if every major section of the bill was a separate bill, submitted in a different year, with the idea of making a series of gradual changes instead of a single radical one.
I’ve been wondering how long it would take someone to raise this question. Especially since one ‘feature’ of our current health system is the prohibition most states have against buying insurance across state lines, which renders Congress’ favorite fig leaf, the Commerce clause, moot.
Washington didn’t even think the Constitution allowed for the provision of pensions for Revolutionary war soldiers. Hard to square that with paying for their wooden teeth and poultices.
Ignorance of why this country was founded and the principles that it embodies is at an all time low. Academia is doing its best to keep it that way.
Anyone know why Wulfgar is windmilling his arms and peeing in the corner?
Former student?
No, Wulfgar was not one of Rob’s students. He did, however, pass the LSAT a while ago and plays a lawyer to the voices in his head.
Nice, Dave. Care to reply to anything substantive?
Oh wait. It’s you. Of course you don’t.
Wulfgar, “Obamacare” is a term of art. It is nothing more than a book jacket which gives only a hint as to what may be inside. In this case the pages are blank. Obamacare represents encapsulation of all of his rhetoric, head weaves and bobs about healthcare. Nothing but politics. He is in real trouble for failing to take real stands on what Obamacare would be. His presidency me be headed to a tail-spin as the Economy tanks and people fight the shape of images in vapor trails.
It’s wrong to call it Obamacare because Obama has not endorsed any plan? Yet he keeps telling us what is and isn’t in his plan, more like assuring us there is nothing to be afraid of without answering specifics.
As for ridiculing Obama, I agree that we should extend Obama every courtesy that the left afforded George W. Bush. Face it, Obama is comedy gold.
I really do not understand how roe v wade can coexist with a forced takeover of everybody’s health care.
“That’s a bold faced lie. President Obama hasn’t endorsed any particular bill currently proffered from Congress.” -Wulfgar
“I have read HB 1300, and you know what isn’t there? Any of the BS you assume to be true for your exposition.” – Wulfgar
I think Orwell called this “doublethink”
Wulfgar,
Beyond the fact that I read your comments as an unhinged rant which came out of the box with an ad hominem directed at Rob’s ego let me just reiterate Mr. Natelson’s context from which he approached this discussion:
You, on the other hand, considered only that this was an indictment of something that does not exist because of Rob’s colloquial use of the phrase “ObamaCare . ” Unfortunately for your argument he did not call anything unconstitutional but merely raised the question of such.
There are, I’m sure, a host of arguments (as have been expressed over at Volokh) that question the both the tenets of the argument and its presentation. To tear out of the gate by calling him a liar simply doesn’t seem to rise the subject matter.
I’m not a lawyer but I do find the discussion interesting. My lack of understanding of Constitutional disqualifies me for doing much more than asking questions of clarification – which I may only barely qualified to do. Hence, I’ve not much to add other than pointing out that I think you’ve missed the gist of the post.
ps – please excuse the several missing words of my comments. I’m sure you can figure it out.
“National health care proposals would increase that power greatly, so it is not surprising that those proposals have constitutional difficulties.”
That’s an understatement. Also, Madonna might have had some cosmetic surgery done over the years and William Shatner perhaps could’ve dialed back the ham-bone acting a little.
I guess you did get a little notice over this fine article. Mark Levin referred to Electric City Weblog on his show this evening and read Professor Natelson’s piece. Congratulations.
That’s great olredtrk, I’m reading Levin’s recent book right now!
Anyone with a passing familiarity with the early Republic knows that in practice, the founders (and the states) refused to fund practically anything, including pre-existing debt payments. It is nonsense to think that they would have provided sawbones and leeches at the public expense. (Imagine the inevitable conflict over whether a Constitutional health care benefit would have extended to slaves!)
Dave Budge, don’t sell yourself short. If you’re an American citizen, you’re qualified to interpret the Constitution and vote accordingly. I decry the idea that one must be a Board-Certified Expert in Constitutional Law to interpret our country’s founding document. If that were true, then government would rightly belong in the hands of an aristocracy of lawyers.
Dave, I find the discussion interesting as well, especially from those who have spectacularly missed the point … as you seem to have. The “ObamaCare” complaint was only one of the mistruths Rob presented, yet I notice you won’t deal with any others. There was a time when you would have called mistruths “lies”. Have I perhaps mistaken you for a man of integrity? Apparently so.
Call that an Ad Hominem if you wish. But a falsehood is a falsehood. Nothing more, nothing less. There are times you hold dictum that dear. This is obviously not one of those.
I just love how a University Book Store manager thinks he is soooo much smarter than a graduate of Cornell Law School elected to the University Senate and the Law Review, a practicing lawyer, journalist, and a University law professor. Not to mention his large and impressive bibliography.
http://www.umt.edu/law/faculty/natelson.htm
Congrats on the Mark Levin Show mention, Rob.
Dan, I’m sure regular readers of this blog will find a great deal of humor in even the hint that I “sell my self short.” What I will say for clarification is that anything I might attempt to add to Prof. Natelson’s constitutional interrogatory would be pretty superficial – at best.
But I do appreciate the pat on the back.
Now what just came from Mr. Hammond, Dave, would be an argument Ad Hominem. I await (without holding my breath) your correction of his ridiculousness.
Not gonna happen, is it?
I don’t dispute that Andy’s comments are a logical fallacy. I also don’t dispute that several logical fallacies aren’t effective rhetorical devices – and, obviously, either do you.
Now, I can’t attest to the asserting Andy makes you think you are “soooo much smarter than a graduate of Cornell Law School…” That might well be untrue, but it’s quite well documented that you think you’re “soooo much smarter” than Andy – amongst the others to whom you’ve attached the moniker ” deeply stupid.”
I recall that you read HB3200 in, what was it, 4 hours? I assume that at roughly 4 pages per minute you had the opportunity to understand language such as:
Now, I’ve read a great deal of the bill but I’ve chosen not demonstrate my ignorance by asserting my knowledge of what it has and what it hasn’t because of such language. In that context I find Andy fallacious indiscretion to be a pretty minor violation of rhetorical form.
But, as must needs to defend my integrity I will dispense with the appropriate admonishment;
Andy, bad form. Go to your room!
Wulfgar is right, it’s not Obamacare and an insult to suggest so. Obama is not capable of devising a plan of his own.
It’s Telepromptercare.
[...] Update: Finally someone is talking about the constitutionality of ObamaCare. It is this very issue which strengthens the case made by Dr. Lawrence Hunter to use the two Jim Demint amendments and pressure five Senate Democrats on the Finance Committee to stand with their party. What Senator wants to stake their careers on a bill that may pass only to be repealed later? The real question comes down to how long can the states tie up this legislation in the courts. We only need three years. Is ObamaCare Constitutional? [...]
[...] Is ObamaCare Constitutional? [...]
ObamaCare Can Be Stopped Dead In It’s Tracks…
We can kill ObamaCare (see here and here), but with few exceptions, nobody is talking about this. National exposure is what is needed and I can think of no other issue in the health care debate that screams for national attention at this t…
[...] Is ObamaCare Constitutional? [...]
RHINOCare – The Senate Finance Committee Puts Lipstick On A Pig. Rush Limbaugh And Other Concerned Parties Are Counting On The Blue Dogs And Ignoring The Elephant In The Room…
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# Wintoon Says: August 17th, 2009 at 2:13 pm — “Thank you for giving voice to this question. It seems that the Obama administration has little regard for the Constitution. A mighty battle between the branches of government may lie ahead.
============================================
The two branches of our one-party system (The Government Party) have ignored the Constitution for many decades.
A mighty battle between true Patriots and the statist usurpers may lie ahead – if we’re all lucky.
Otherwise, what semblance of our great Republic will cease to exist.
God Help Us…
DD
Constitutions should not be left to professors inclined to read their own prejudices into the founding fathers. Mr. Natelson has no use for government, and shares with Mr. Budge a blind spot for private sector deficiencies.
And anyway, strict constructionism is an odd way of doing things, as if we are held in chains by pre-industrial farmers.
There are the few, and the many. In the U.S., far more than any other industrial country, we have government by the few. The many are cajoled, honored, patronized, hidden-taxed, polled, and urged to vote so long as their choices are limited to those who work for the few. It’s a system that works as intended, but needs to be changed, along the lines of the Scandinavian countries, and some Western European countries, and Canada and Taiwan.
We need to clean up campaign finance. (The Canadians have an interesting system whereby regular people make contributions to the candidate of their choice, and are then reimbursed up to 80% by the government.) The Roberts court will soon open the floodgates for corporate financing of elections, not that it isn’t already extant.) We need to overcome winner-take-all elections. We need to eliminate corporate personhood. We need to place restrictions on the ability of elected official and their staff to barter for employment and do turn-around lobbying for the people who finance their former bosses. We need high marginal tax rates to discourage concentration of wealth, which in the end always corrupts democratic/republican rule.
In short, we are as corrupt as any country that ever existed on the face of the planet. But corporate rule is so entrenched that it will not soon be undone. The few rule the many, and the odd thing is that they have managed to convince so many of the many that rule by the few is in their best interest. That’s clever. I’ll given them that. Those think tanks aren’t just people collecting salaries. They are hard at work undermining democratic rule.
Mark T:
“And anyway, strict constructionism is an odd way of doing things, as if we are held in chains by pre-industrial farmers. ”
So tell me. Is this the Left’s version of the “rule of law”?
The mechanism for change is called “Amendment”.
If you think 75% of Americans are on board with becoming slaves then just put your concepts up to a vote. You Progressives have the Congress and White House so just go for it why don’t ya?
I think that it’s been fairly aptly shown by both Mr. Budge, Professor Natelson, and many others in this thread, that facts and truth are optional, and insults and attacks are tolerated, and sometimes even encouraged, as long as the Right people are doing it. When an admonishment is issued, it’s done begrudgingly and with all the sincerity of a street mime.
Professor Natelson notes early on in this particular post “those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.” It’s worth noting that this is a purely hypothetical question since currently there is no bill that actually does this. He then goes on, at length, as if this hypothetical situation were actually real. This was, of course, accepted without question by those who believed what he was saying already.
I think that Wulfgar did an excellent job of poking holes into Professor Natelson’s arguments. This belief is reinforced by the fact that only one person has bothered to address any of the issues he raised, and even that person only briefly and superficially touched on one of his many points. The rest only saw fit to exercise their Gregg given right to attack him personally. I’d like to see Wulfgar’s points answered, if there are any here that can do so.
In a word, NO! There is NO Constitutional authority which grants this power to the Federal Government. Just like the MANY things that have been done in the past 100 years by Uncle Sam in the name of “the general welfare” or “common defense” of the people, this is but another erosion of the supremacy of the U.S. Constitution and its’ authority over the Congress, President and Justice Dept. The Constitution established a LIMITED Government, and meant to do so! Unlimited Government is being established by the three branches of our Government WITHOUT the permission or consent of “WE the PEOPLE”!!! The States and the people ESTABLISHED and are Superior to the Federal Government, not the other way around!
MWL
[...] Finally, someone writes about the real issue regarding national health care. Thanks to Instapundit for leading me to this article: Is Obamacare Constitutional? [...]
[...] Rob Natelson over at the ElectricCity Weblog has a good post asking the musical question, “Is ObamaCare Constitutional?” Excessive Delegation. The Constitution “vests” legislative authority in Congress. [...]
Hey Andy Hammond;
Was that a Posting While Intoxicated offense? Or are do you just have a man crush on Rob Natelson and your emotions obscure your ability to think? You may want to review your statement while viewing pictures of the Tea Party protesters and their stupid signs. Will you deny their ability to offer resistance to nationalized health care based on their unequal educational and intellectual abilities compared with President Obama’s Harvard education?
Well, come to think of it, put it that way, you might just have a point. I’ve always thought populism was a cynical play to the “American Idol” worshipping members of the herd.
Wulfgar, otoh, remembers too many of Rob’s “let’s all sign up for the John Birch Society” moments. It affects his, and my, ability to take the good perfesser as seriously as you.
Dear Goof,
I know lots of stupid people who attended Harvard. Can you say affirmative action President?
Dave, that’s an assumption on your part that I don’t understand what I’ve read, that I can’t cross reference, and I don’t know how to do any research. One doesn’t need to be a lawyer to do such things. It helps, no doubts. But it’s not necessary. So exactly where do you think my “ignorance” is displayed?
In truth, all you did was offer the same Ad Hominem fallacy as Hammond. I admit that it’s very clever to allude to the idea that I don’t have any understanding that you fail at. No arrogance there, of course. What you haven’t done is show, in any way, how I am wrong or ignorant about HB 1300. I notice as well that Rob hasn’t defended any lie he told in the original post; you know, that writing I reacted to?
Now, by your own words:
Go to your room.
HB 1300 SB HB 3200. So much for not using the 10 key pad. But you knew what I meant.
Point of order: There was not one bit of argument ad hominem in my last response to you unless one can consider being self-critical an attack on one’s self.
Secondly, any ideas to which you think I alluded are an assumption on your part, not mine.
Last, since I didn’t take a position on either your or Robs argument per se (pleading my continuing ignorance) let me simply point out that there is a difference between a “mistruth” and a lie from which you call my integrity to question. To divine that someone is lying one has to know what they know. A “mistruth” can be an innocent error of facts. Calling someone a liar because they stated an alleged “mistruth” in error is a character assassination – which can be a useful rhetorical device regardless of its fallacious nature – but I doubt that Aristotle would approve.
“My guess is that they would make space aliens pay for, as they obviously have a more advanced technological society, because they can warp time.”
My guess is that the founding fathers were a whole lot smarter than Nick Reynolds.
I don’t understand how it can be constitutional to require me to buy a health insurance policy. The legislation doesn’t seem to have much to do with health care; it’s just a direct takeover of the health insurance industry by the federal gov’t.
[...] Destroying The Constitution which is basically Illegal and Obama should be arrested [...]
Interstingly, of all the possible points of argument, the most likely to succeed is the one “constitutional theory” that has the least basis in the actual Constitution, i.e. substantive due process.
But the Tenth Amendment argument to me is the most interesting. Particularly given that some states are already begin to assert their “constitutional” rights in “opting out” of federal mandates.
The question becomes, how far can the states carry that argument. To a certain extent the argument could, legitimately, be said to be about 100 years too late in that the States have rarely asserted their rights to any great extent. The most significant in my lifetime has been the unfunded mandates argument, which is weak, as it asserted that states can be co-opted into enforcing federal law without money from the federal government. As long as the money flowed, the states no longer really objected.
On a related point, how far can states really argue on behalf of their citizens?
From the king of Ad Hominem, Wulfgar cries about me comparing him to Rob Natelson. Must have touched a nerve, eh? He can certainly dish it out but can’t take it.
My question is, how can (nay, why would) a man who called the U.S. Constitution a “fundamentally flawed document” stand before the country and the world and swear to “preserve, protect and defend” it?
Is Obamacare Constitutional? Clearly, the answer is yes, and you don’t even have to read very much of the Constitution to get that answer.
from: http://www.usconstitution.net/const.html
The Preamble states: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
DEFINITION: welfare n. 1. health, happiness, or prosperity; well-being.
(did you note “health”?) so – to repeat, the answer is YES!
So, one word in the preamble grants unlimited powers, enumeration be damned?
Mark in Boston,
If you look at the action verbs in that sentence, however, the words “provide” and “promote” are used. Whereas provide means to make available, supply or afford, promote means to support or encourage. There’s no reason why the federal government can’t encourage health care, it just shouldn’t supply it. Also, the definition of welfare for the writers of the constitution was much different than how we use it today. The Federalist Papers has much about the subject of the welfare of the people.
Interesting bunch of comments, I note that the one (to me) reasonable critique of Mr. Natelson’s rant hasn’t been actually addressed, other than by folks arguing the Mr. Natelson’s a “PROFESSOR” so his opinion must be correct.
In truth, all Natelson did was create a strawman and then argue (un-persuasively) that it’s “unconstitutional.” By Mr. Natelson’s reasoning all Federal government activities other than (presumably) the Army and Navy (gotta get rid of the Air Force!) are “unconstitutional” because they’re not “original.”
Several folks around here seem to think that the Federal government paying for healthcare somehow “enslaves” us and makes us less free. Its an interesting opinion, but I’m really unsure how that works.
What’s the strawman, Carl?
So many things that the government does are unconstitutional. It is very sad that most Americans are well aware of what the first amendment says, but have no idea what the tenth one says. So often I find myself having to explain to people that regardless of what they think the law should be, the current law should be obeyed. If they want the government to handle health care, then they should be talking about amending the constitution, but they are not because they don’t realize that the law would need to be changed to do what they propose.
I’m glad to see all the comments on this post. I’d just like to clarify two quick points:
Mark in Boston: The Preamble from which you quote is a statement of purpose. It has no substantive force and gives the federal government no power. That’s a universal characteristic of preambles in legal documents, both at the Founding and today. This, by the way, is an uncontroversial point, even among constitutional lawyers who agree on little else.
Carl: I did not argue in my article that nationalized health care was unconstitutional from an originalist point of view — practically everyone admits that. The point I was making, which you will see if you re-read it, is that there are constitutional issues with nationalized health care even from the standpoint of modern Supreme Court jurisprudence.
Incidentally, Carl, your claim that “By Mr. Natelson’s reasoning all Federal government activities other than (presumably) the Army and Navy . . . are “unconstitutional” because they’re not “original”” is a common stereotype of original meaning jurisprudence, but it is not accurate. The Constitution, as originally understood, is a lot more flexible than that. It’s just not infinitely flexible, as some in Congress seem to believe.
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