Does the federal government have the power to require all Americans to purchase health care?
A recent article in The Kentucky Gazette, by Michael Maharrey of the Kentucky Tenth Amendment Center, says "no."
The article says that health care is a states' rights issue, noting that the 10th Amendment says "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."
No power granted in the Constitution, no right to regulate.
But some Washington politicians with their big-government shades get hung up on Constitutional provisions that have nothing to do with health care, like the commerce clause and taxing authority.
Maharrey points out that the commerce clause emerged as a means of preventing states from imposing tariffs on each other. The word "commerce," as the framers intended, only refers to trade.
The other flawed argument lies in Congress's taxing authority found in Article I of the Constitution that permits it to collect taxes for the "general welfare" of the people. But one need look no further than the words of James Madison to clear up any confusion:
"With respect to the two words 'general welfare,' I have always regarded them as qualified by the details of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character...not contemplated by its creators."
Maharrey's argument is right in line with the Constitution. The same cannot be said about the federal government's health care mandate.
A recent article in The Kentucky Gazette, by Michael Maharrey of the Kentucky Tenth Amendment Center, says "no."
The article says that health care is a states' rights issue, noting that the 10th Amendment says "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."
No power granted in the Constitution, no right to regulate.
But some Washington politicians with their big-government shades get hung up on Constitutional provisions that have nothing to do with health care, like the commerce clause and taxing authority.
Maharrey points out that the commerce clause emerged as a means of preventing states from imposing tariffs on each other. The word "commerce," as the framers intended, only refers to trade.
The other flawed argument lies in Congress's taxing authority found in Article I of the Constitution that permits it to collect taxes for the "general welfare" of the people. But one need look no further than the words of James Madison to clear up any confusion:
"With respect to the two words 'general welfare,' I have always regarded them as qualified by the details of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character...not contemplated by its creators."
Maharrey's argument is right in line with the Constitution. The same cannot be said about the federal government's health care mandate.
10 comments:
The new health care law goes well-beyond Congress's delegated powers. Glad we have the Bluegrass Institute and groups like the Kentucky 10th Amendment Center exposing the injustices of the new law.
The health care mess is going to be an interesting fight indeed.
With states finally weighing in on the 10th Amendment issue (where are you, Kentucky leadership?), the health care issue may well be a catalyst to much more widesweeping return of power to the states and the people.
Yes, the federal government has the power to require all Americans to purchase health insurance. The Tenth Amendment cannot be interposed to prevent it. The Tenth Amendment says:
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.
Alexander Hamilton wrote in Federalist Paper 84,
The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures….
Trying to interpose the Tenth Amendment saying that states have the authority to override federal law is to advocate a return to the Articles of Confederation, which were not too far removed from feudalism.
Health care is not a state’s right issue. Health care comes under the general welfare clause of the Constitution (Art I, Sec 8, Clause 1). It’s also mentioned in the Preamble.
Your article said: No power granted in the Constitution, no right to regulate. Not so, according the Alexander Hamilton in Federalist Paper 84. He wrote:
Why declare that things shall not be done which there is no power to do?
There is no provision in the Constitution prohibiting Congress from enacting healthcare legislation.
The article misconstrues Madison’s quote. Art I, Sec 8, Clause 8, says, Congress shall have power
To promote the progress of science and useful arts….
Medical advances are the result of scientific progress. The deliver-mechanisms qualify as useful arts.
So, healthcare is included under the general welfare clause because it is qualified by the details of powers connected with them. Clause 8 provides the details of general welfare powers since it is connected with them.
Maharrey's argument is so out of line with the Constitution that it makes one wonder if he’s even bothered to read it.
It sounds like he’s only read about it from questionable and dubious “conservative” AKA feudalistic, sources.
Hempy,
Even if health care is not a state's rights issue, wouldn't you rather see this issue taken care of at the most local and individual level possible?
I just read Hempy's comments. I have to give him credit, he uses perhaps the most illogical twisting of a Constitutional clause I have ever seen. The commerce clause...been there done that. The “general welfare” clause, know that one well. But never have I seen anyone use the power to “promote the progress of science and useful arts…” to justify mandating health insurance. I have to at least give Hempy an A for creativity.
Let's take his argument a step at a time.
First he rightly points out that Hamilton wrote: The Congress under the proposed government will do all the business of the United States. But under Hempy's interpretation of that phrase, Congress can do anything it darn well wants.
In fact, the role and power of Congress is constrained by the Constitution. So yes, Congress does the business of the United States and exercises the powers granted by the Constitution without intervention of state legislatures, but powers outside of those enumerated by the Constitution are left to the states and the people, and Congress has no power or authority to interfere.
The entire passage that I cite in my op ed says the following:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.” -Madison, Federalist 45
Federal acts are only supreme when they are within the scope of its constitutional authority. Except, apparently, in Hempy's world where all federal acts are supreme simply because they are federal...or something.
So we are back to the question – is health care an enumerated power granted to Congress.
First Hempy cites the “general welfare clause.”
Here's what Madison had to say about that.
“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
Further:
“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”
In other words, the Congress has the power to promote the general welfare only within the scope of the specific, enumerated powers that follow. Hamilton also acknowledged that Congress does not have general legislative authority to do whatever it deems necessary to promote the “general welfare.”
“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”
Then Hempy proceeds to what is now my all- time favorite distortion of a constitutional clause.
“Congress shall have power...
To promote the progress of science and useful arts….
Medical advances are the result of scientific progress. The deliver-mechanisms qualify as useful arts.”
First off, it might be helpful if we actually look at the entire clause instead of cutting part of it out.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Yes, Congress has the power to promote the progress of science – but not in any way any person can conceive. The clause restricts the federal government's promotion of science to one specific role: issuing patents and copyrights.
It boggles my mind that anybody could conceive of health insurance mandates based on that sentence.
Kind of takes the sting out his accusation that my “argument is so out of line with the Constitution that it makes one wonder if he’s even bothered to read it,” eh?
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