Constitutional Law Notes
Constitutional Law Notes
Mandate to buy health insurance might not be constitutional
The individual mandate to buy health insurance is a key part of the Democrats’ health-care plan. Their package, if they can pass it now, doesn’t work without the mandate. But is it constitutional?
Sen. Patty Murray, a Democrat, who has been working to pass it, said it is, easily. “We have done it before,” she said, noting that Social Security, which is federal, is mandatory insurance.
But when it came to the Supreme Court in 1937, Social Security was approved as a tax and a spending program. A single-payer plan might be approved that way, but not the current plan. This is mandatory private insurance.
Requiring people to buy that, former Sen. Slade Gorton, a Republican, told me, is “clearly and blatantly unconstitutional.” He immediately sanded down that statement, however, by saying the Founders would have thought it so. Today’s Supreme Court would split on it, he said, and “it will probably be Justice Kennedy who decides it.”
The argument against the mandate is that it exceeds the powers of Congress. The Constitution lists these powers in Article 1, Section 8, from declaring war and fighting pirates to imposing taxes, borrowing money and running the Post Office. They describe a small government. It has grown large by stretching one thing on the list, the power “to regulate Commerce … among the several States … ” This has been interpreted to cover all activities that affect commerce, from racial discrimination to growing marijuana to a hundred other things.
As it said “yes” to federal power, one claim at a time, the Supreme Court kept saying there was a limit. There had to be, otherwise the commerce power would swallow up all the others and federal power would be unlimited. But in 75 years the Supreme Court has only twice said a law exceeded that limit: a gun law and a rape law. Both cases were decided 5-4, with the swing vote Justice Anthony Kennedy’s.
Now comes the mandate to buy health insurance. “The question,” said attorney David Rifkin, who spoke to the Federalist Society in Seattle last fall, “is how to shoehorn this into the Constitution.”
For some, it is easy. Stewart Jay, who teaches constitutional law at the University of Washington School of Law, and has written several histories on constitutional law, said: “Congress is allowed to regulate economic activity, and buying insurance is an economic activity.”
Case done.
Rifkin, of Baker & Hostetler, Washington, D.C, said, “there is something really weaselly about that argument.” The commerce power has always been about regulating an activity. And Rifkin said, “Is refusing to purchase insurance an activity?”
Attorney General Rob McKenna is among a group of Republican state attorneys general who may challenge the individual mandate on just that point.
“My opinion,” said McKenna, “is that it isn’t clear where the federal government would derive its authority to force individuals to buy health insurance. These are individuals who have chosen not to participate in commerce.”
I like McKenna’s argument because I like where it goes. I don’t want government to tell me how to spend the money I have left over after paying taxes. The state government may do it — with car insurance, for example — and that’s enough for me.
The Supreme Court could go either way on this. In the end, it comes down not to who’s “right” about the law, but about what people want.
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Please, I have heard the theories, but please, where can I find definitive proof the FED is private?
I have heard that there was once a leak of the stockholders of the FED, is this true?
Does the FED really have the power over printing our money (I thought that belonged to Congress solely under constitutional law) and what does it mean on the bills “Federal Reserve Note”?
Does the FED really have the power to regulate our money (I thought that belonged to Congress solely under constitutional law)?
Who makes up the FED, are there banks involved, are they International Banks just combined, I heard this was the case?
When did the FED come into being, on whose presidency, what year?
Who started the FED and what was their reason for doing so?
Thanks for your answers and I hope I get some good ones, thanks again!
It has been private from day one. Where in the world did you get the idea it was a government organization? That is weird. The British bankers started this crap from the beginning…read Jefferson.
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