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Tuesday, January 5, 2010

Get ready for a Constitutional throw down

As Congress gets ready to work on a behind closed doors compromise health care bill, one that will merge the House and Senate bills, lawyers and attorney generals across the country are gearing up for a constitutional throw down. Two issues that are being looked at are the individual mandate and the sweetheart deals.

The first issue the Supreme Court will have to deal with is the mandate that an individual purchase coverage. The federal government does not have authority to force a citizen to purchase a good or service. When President Clinton tried to pass health care legislation in 1994, which included a mandate for every citizen to purchase insurance, the non-partisan Congressional Budget Office (CBO) weighed in on the issue stating “The government has never required people to buy any good or service as a condition of lawful residence in the United States…”

The Supreme Court has already weighed in on the issue in the cases of United States v. Lopez (1995) and United States v. Morrison (1995). In both cases, the high court “it was outside the reach of Congress’s Commerce power.” The Supreme Court rejected Congress’ argument that they had the power to regulate any and all activities by an individual. The health care bill with its mandate goes against this ruling. The Commerce clause does give Congress the authority to spend money but it does not give them the authority to tell an individual how they can spend their money.

A reporter with recently asked two Democratic senators what “specific part of the Constitution authorizes Congress to mandate that individuals must purchase health insurance.” Here are the answers and they are mind-boggling. Senator Roland Burris (D-IL) stated the U.S. Constitution gives authority to the government “to provide for the health, welfare and the defense of the country." But as pointed out, the word “health” is not mentioned in the Constitution, not even once. Burris’ Communications Director James O’Connor tried to help his boss out by saying the senator was referring to the Preamble of the Constitution, which covers the “general welfare.” Again, the word health is never mentioned.

Senator Jack Reed (D-RI) who couldn’t pinpoint the specific location of the Constitution that authorizes Congress to mandate such a purchase compared mandating a citizen to purchase health care to registering for selective service. The senator said that making men sign up for the draft was “necessary for the functioning of the government over the past several years.” Forcing people to buy insurance is not necessary for the government to function.

The second issue that the Supreme Court will have to deal with is the constitutionality of “sweetheart” deals that were granted to certain states just to secure their votes. The most famous one being the Nebraska deal made with Senate Ben Nelson that will exempt Nebraska from having to cover the increased cost from the expansion of Medicaid. That cost will be covered by the remaining 49 states some of which are hurting financially and can’t afford to take on anymore expenses. The 14th amendment of the Constitution provides equal protection under the law. Giving some states a sweetheart deal to obtain their vote, defies that amendment. Governors and Attorney Generals in at least 13 states are arguing that the treatment some states are getting violates the 14th amendment.

Our current leaders, it appears, have forgotten what the Constitution says they can and cannot do. Congress has the authority to regulate economic activity that an individual chooses to engage in but they do not have the authority to mandate that an individual engage in the activity in the first place.

If Congress attempts to use the Commerce clause as its “legal” way to make us buy insurance, then what’s next? Do they make us buy a Toyota Hybrid each year, or require us to buy energy-efficient appliances?

In the case of Marbury vs. Madison (1803), Chief Justice John Marshall wrote, “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written." When Speaker Pelosi was asked if forcing Americans to purchase insurance was constitutional, her response was, “Are you serious?” Well, yes, Madame Speaker, we are serious.

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