Beyond the bill’s constitutionality

Since my college politics class, I sometimes carry a pocket Constitution with me. Sure, there are days it camps on the kitchen table, but most days my goal is to keep the founding document in tow. While I may not have it memorized, there is one thing I know it does not contain: a provision prohibiting government health care.

Recently, it seems conservatives have been crying “unconstitutional!” with Oyez fervor when describing Obamacare. Or more graphically, the House approved Senate bill fell out of the unconstitutional tree and hit every branch on the way down.

Senator Jim DeMint used the word in a USA Today op-ed on Monday. On this very blog, former Vermont state senator Mark Shepard accused his representative of “ignoring constituent concerns about the constitutionality of the federal government controlling healthcare.” But just as predictable doesn’t describe Colorado weather, neither can the health care bill be pigeon-holed as unconstitutional.

Let’s start elementary. Obviously the Constitution doesn’t specifically proscribe (or prescribe) government regulation or mandates. There is no health care amendment or mandate clause. Not even “penumbras formed from emanations.” It’s just not there.

So on what grounds do opponents call the bill unconstitutional? For starters, Mr. Shepard alludes to evidence found in Article I Section 8 , which describes Congressional powers. In that section, the Founders don’t specifically give Congress the power to mandate coverage, or force citizens to buy a good or service. However, we must be careful not to assume that simply because such a power is not enumerated that Congress unequivocally does not have the power. Remember, that same section includes the “necessary and proper” and “commerce” clause–both have been used (rightly and wrongly) to justify many laws and government actions.

But what about the way the bill was passed? Certainly using reconciliation proves unconstitutionality. Not so. Reconciliation isn’t anything new under the Congressional sun. Dirty? Yes. But if every bill passed using dirty politics was grounds for unconstitutionality, then we might have a lot less laws on the books (see LBJ using the death of JFK to pass civil rights legislation).

And finally, what about those who say it is unconstitutional for Congress to mandate its citizens to buy coverage (such as Colorado’s Attorney General)? And what about those such as Minnesota Governor Tim Pawlenty who, on “Good Morning America,” called this move “unprecedented?” Really? Let’s not fool ourselves: Mandating insurance is nothing new. Almost every state requires its constituents to have a minimum amount of auto insurance coverage. (Starting to sound familiar?) Interestingly, no one is questioning the constitutionality of those laws.

But wait, the Tenth Amendment specifically says that the powers not specifically delegated to the federal government “are reserved to the states respectively.” Doesn’t that justify mandated state auto insurance? Yes! Doesn’t that proscribe government mandated health insurance? Not necessarily. Remember, opponents will certainly quote the “necessary and proper” and “commerce” clauses to justify the leap to a government mandate. And the high Court has historically allowed it. Watch. It’s just not that big of a leap.

Let me be clear: I do not support the health care bill. I think it is an ill advised piece of legislation. But rather than trying to slap an “unconstitutional or bust” bumper sticker on it, let’s fight it on other grounds, grounds that don’t include splitting Constitutional hairs. Grounds that are not filled with so many gray areas. For example, let’s unite around the fact that 59% of the American people do not support this bill. Let’s unite to expose the “lie” that the bill will reduce deficits, and expose the true costs . Let’s unite around that fact that it will be nearly impossible to regulate the mandate for coverage. Those arguments are our best hope.

Can we wage a battle on the constitutionality of the bill, rallying around the Tenth Amendment? Sure. But is that really where we should stake our claim, draw the battle line? If we do, we will certainly lose. And that’s something we can’t afford.


Jonathon M. Seidl is a 2009 graduate of The King’s College in New York City where he studied politics, philosophy, and economics. His writing has appeared in WORLD and online with The American Spectator. He currently writes from Denver, where he works at Colorado Christian University’s graduate division.

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