Probable Constitutional Challenges to ObamaCare

If the president signs H.R. 3590 (whether or not the bill is reconciled, “slaughter ruled,” and/or deemed in its passage), the legislation will be challenged on constitutional grounds. Let’s look at a few of the ways that federal control of health care, and H.R. 3590 in particular, is unconstitutional.

House Majority Leader Steny Hoyer was asked where in the Constitution Congress was granted the power to mandate that a person must buy a health insurance policy. His answer:

Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end. The end that we're trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.

The “general welfare” clause Hoyer was referring to is in the first line of Article I, Section 8 of the Constitution. This section specifically enumerates the powers of Congress. (The list is very short. Congress has 17 listed, or “enumerated,” powers. Health care isn’t one of them.)

The first line of Article I, Section 8 states, in part:

The Congress shall have Power To … provide for the … general Welfare of the United States ... [Emphasis added.]

Notice that this first sentence does not say, “The Congress shall have the Power to provide for the general welfare of the citizens of the United States.”

Every time the phrase “United States” is used in the Constitution, it denotes the federal (or central) government. This is clearly seen in Tenth Amendment where the “United States,” the “states,” and “the people” are three distinct concepts:

Amendment 10 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. [Emphasis added.]

It follows that the power to provide for the “general Welfare of the United States” only applies to the day-to-day operations of the federal government (e.g., Hoyer’s paycheck, hiring congressional staff, providing office furniture, etc.). The “general welfare” clause has nothing to do with the citizens of the United States.  If it did, the list of enumerated powers that follow the clause, in Article I, Section 8, would have been redundant -- since Congress would already have, from the “general welfare” clause, the power to do whatever it wanted to do to promote the welfare of the citizens of the United States. This is Hoyer’s claim.

Health care is reserved, according to the Constitution (especially given the text of the Ninth and Tenth Amendments), to the individual states and/or to the people.

But the words of the Constitution don’t seem to matter much to this Congress.

When Nancy Pelosi was asked, "Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" Pelosi replied, "Are you serious? Are you serious?"

Pelosi may not think the Constitution is a serious matter, but some people do. The governor of the state of Idaho this week signed into law House Bill 391 -- the “Idaho Health Freedom Act.” According to the AP, more than 35 other states are considering similar legislation.