Preface: On a message board I frequent (the Snider Board), there has been some discussion of late about the recently-passed so-called health care reform. Someone asked the question "How is it being called unconstitutional?" and I took a stab at answering it. That answer follows.
People have different perceptions of what is or is not constitutional. Some people believe that the Constitution explicitly lists everything the federal government is authorized to do, and thus if it is not listed (health insurance legislation, a census that asks for more than a count of people living at an address) then it is not constitutional. Others embrace a broader interpretation, using things like the "promote the general welfare" text from the preamble as justification for federal government involvement in these areas.
In my opinion, the best claims of unconstitutionality are related to the absence of any explicit reference to health insurance in the Constitution (or subsequent amendments) and the ninth and tenth amendments.
Ninth amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Thus a right to choose for yourself or your family health insurance would seem to me to belong to the people, not the government. In fact, if the Massachusetts plan requires all to have insurance as I've heard recently, I don't know why this amendment couldn't be used to rule it unconstitutional. There is quite a big step from regulating business for the common good and requiring private citizens to purchase a product (even one as intangible as insurance).
Tenth 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." The history of health insurance in this country is that it is regulated by state governments, not the federal government. I believe that provides at least a de facto basis for a claim that health insurance regulation is not a power of the federal government. Note: The Supreme Court rarely if ever uses this amendment to rule anything unconstitutional, so I'm not holding my breath.
Regarding the preamble text: two phrases appear immediately next to each other. One is "provide for the common defence", and the other is "promote the general welfare". I have always found it interesting (in the context of those who would use the "promote the general welfare" phrase to justify something like health insurance reform by the federal government) that the Constitution says to provide for defense but to promote general welfare. The most appropriate definition I found for "provide" would be "take measures in preparation for". "Promote" is most appropriately defined as "to advocate or urge on behalf of something or someone". If the federal government was meant to provide things necessary for the general welfare of the people of the United States, why wouldn't the Constitution say so? It had no problem using the word "provide" in the context of defense. Thus I believe the choice of "promote" in the context of welfare to be a deliberate effort to differentiate the concepts.
Finally, requiring all people to buy health insurance doesn't seem to be an effective way to secure the blessings of liberty to ourselves or our posterity. Though I guess an argument could be made that it liberates us from crushing expense due to health care costs, but that just doesn't feel to me to be the type of liberty they were aiming for.
Ultimately, there are exactly nine people that will have a say into whether or not this legislation is constitutional. In the meantime we all get to rant about how evil it is or how much of a blessing it is or sit back and watch all the wacky people on both sides. :)
Go Top