Senator Orrin Hatch (R-UT) addressed The Heritage Foundation yesterday on the unconstitutionality of congressional action that forces Americans to buy health insurance under Obamacare.
In Sen. Hatch’s opinion, that mandate would not pass muster under the Constitution, and it would be an entirely unprecedented action that is beyond the scope of Congress’ powers:
Make no mistake, requiring individuals to purchase a particular good or service, as these bills would do, would be boldly going where Congress has never gone before. Congress has regulated interstate commerce, but has not required that people engage in it. The Supreme Court has expanded Congress’ power to regulate activities that substantially affect interstate commerce, but not the requirement that people engage in those activities.
When Sen. Hatch speaks of Congress’ powers to regulate interstate commerce, he is referring to powers with their roots in the Commerce Clause, an enumerated power found in Article I, Section 8, Clause 3, of the Constitution, which says the U.S. Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
As Sen. Hatch noted, the Supreme Court has expanded the meaning of the Commerce Clause to allow Congress to regulate not only commerce itself (such as the sale of goods across state lines), but “activities that substantially affect commerce.”
For example, in the 1942 case of Wickard v. Filburn, the Court ruled that Congress has the power to set national quotas on how much wheat one grows on their own land for their own consumption. In the Court’s view, even that personal, local activity of producing and consuming wheat could affect prices and the market, therefore subjecting it to congressional regulation under the Commerce Clause.
However, Sen. Hatch pointed out that the Court’s interpretation limited Congress to regulating activities. If Congress were to mandate that Americans must buy health insurance, it would be entering into an entirely new realm of power and regulation:
Congress has regulated interstate commerce, but has not required that people engage in it. The Supreme Court has expanded Congress’ power to regulate activities that substantially affect interstate commerce, but not the requirement that people engage in those activities.
The effects of such a broad expansion of congressional power, Sen. Hatch said, would be far-reaching.
If Congress can require purchase of particular goods or services to help the economy, there was no need for the Cash for Clunkers program. There was no need for the Troubled Asset Relief Program or the other bailouts. Congress could tell people to purchase a certain car, invest their money in certain companies, or deposit what is left of their paychecks in certain banks. If there is no difference between incentives and mandates, between regulating what people choose to do and requiring that they do it, between activity and non-activity, then the Constitution provides no limits on the power of the federal government. And without the necessary condition of such limits, liberty itself is at risk.
Sen. Hatch said that there are constitutional means which Congress can use to increase health insurance coverage, but those methods aren’t being considered. And as for the unconstitutional tactics, Sen. Hatch pointed out that the American people stand firmly against them:
A national poll conducted last month found that 75 percent of Americans believe that requiring them to purchase health insurance is unconstitutional because Congress’ power to regulate commerce does not include telling Americans what they must buy.
To read more about the constitutionality of congressional mandates, check out The Heritage Foundation Legal Memorandum, “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional,” by Randy Barnett, Nathaniel Stewart and Todd F. Gaziano.