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.


Section 39-9003 of Idaho law now reads:

The power to require or regulate a person’s choice in the mode of securing health care services, or to impose a penalty related thereto, is not found in the Constitution of the United States of America, and is therefore a power reserved to the people pursuant to the Ninth Amendment, and to the several states pursuant to the Tenth Amendment. The state of Idaho hereby exercises its sovereign power to declare the public policy of the state of Idaho regarding the right of all persons residing in the state of Idaho in choosing the mode of securing health care services.

It is hereby declared that the public policy of the state of Idaho, consistent with our constitutionally recognized and inalienable rights of liberty, is that every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty.

There’s a constitutional problem for you.

The Washington Post has reported that under the final version of the national health care bill, “all Americans would be required for the first time to obtain insurance or face an annual penalty of $695; employers could face penalties of $2,000 per worker for not offering affordable coverage.”

Not in Idaho they won’t. The attorney general of the state of Idaho (and attorneys general in the other states rushing to pass similar legislation) is, no doubt, working right now on a lawsuit to defend his state’s law and to challenge the constitutionality of ObamCare.


There are a number of other possible constitutional challenges if the national health care legislation becomes the law of the land. Look for private citizens and employers who are fined under the new law to sue under the First, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments.

Challenges may come under the First Amendment for religious reasons. Exemptions in the bill aside, there will be members of some religion that hasn’t been exempted and those members will sue.

Suits under the Fourth Amendment will be filed when the IRS seizes some working gal’s wages as a “fine” for not having health care. The Fourth Amendment prohibits unreasonable searches and seizures.

These same citizens will sue under the Fifth and Sixth Amendments for similar reasons. It is difficult to sue the federal government (especially the IRS). But it is precisely the IRS, under ObamaCare, that will enforce and collect fines without the access of the citizens to either due process (Fifth Amendment) or a jury trial (Sixth Amendment).

Constitutional lawsuits may also be brought by private citizens under the Ninth and Tenth Amendments for reasons given above.

Depending on the last-minute shenanigans, members of the Congress who oppose the measure may also have standing to sue under Article I, Section 5 (if the rules of either the House or Senate are violated or disregarded) and/or under Article I, Section 7. (Article 7 states: “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”)


And that is the short list of possible constitutional challenges. Beware Democrats: if you pass ObamaCare, a constitutional hurricane is headed right for you.


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