ObamaCare and the Constitution: What would Jefferson and Madison think?

When asked last fall where the Constitution authorizes Congress to require citizens to buy health insurance, House Speaker Nancy Pelosi was temporarily caught off guard, finally sputtering, “Are you serious? Are you serious?” She then quickly turned to another reporter without further comment.

Another Democrat, Rep. Phil Hare of Illinois, reacted similarly when recently posed that question by one of his constituents: “I don’t really worry about the Constitution on this, to be honest.”

While the thought that the Constitution actually limits the power of Congress to enact legislation may be foreign to some Democrats, the framers of the Constitution intended for the federal government to be limited to the powers that are specifically enumerated, or listed, in the text of the document.

In the Federalist Papers, James Madison wrote: “[T]he proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

In part to protect that sovereignty, more than 20 states have challenged the constitutionality of the new federal health-care law. Several have even moved to pass amendments to their constitutions that would forbid any law that forces citizens to participate in a health-care system.

The outcome of these radical efforts to affirm the guaranteed rights of states and individuals will have huge consequences for the very character of America.

Key constraint: enumerated powers

Because the federal government is composed of – and constrained by – enumerated powers, then the power to regulate health care would have to be one of the powers specifically given to it in the Constitution.

Out of the 17 named powers given to Congress in Section 8 of Article 1, however, none mentions anything about heath care, insurance, doctors, medical treatment, or anything approaching an enumerated power that would allow Congress to legislate our health.

Then how is it that Democrats can claim the Constitution permits the new health-care law? They point to two constitutional provisions as their grant of authority to enact health-care legislation.

The first enumerated power claimed by Democrats is the “general welfare” clause. House majority leader Steny Hoyer, for instance, said that Congress has “broad authority” to provide for the general welfare. The term “general welfare” appears twice in the Constitution, once in the Preamble and another time in the “tax and spend” clause.

The Preamble to the Constitution, however, has never been considered a grant of power to the federal government. As the Supreme Court has put it, “[a]lthough th[e] preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States.”

The tax and spend clause, however, is an enumerated power given to Congress in the Constitution. It reads in part, “[T]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

To read the term “general welfare” in the clause to be a broad grant of authority to Congress to tax for whatever purposes it deems are in the general welfare of the country would be to make a mockery of the Constitution. Such a broad grant of authority would eclipse a written constitution of enumerated specific, limited powers given to the federal government.

As Thomas Jefferson explained, “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. [Congress is] not to lay taxes ad libitum for any purpose they please.”

Madison also noted: “Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.”

The second enumerated power that Democrats claim supports their authority to regulate the health-care industry is the Commerce Clause. The Constitution does in fact specifically give Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The clause, however, was simply meant to prevent trade wars between the states, a common occurrence under the Articles of Confederation. The inability of the Continental Congress to resolve trade disputes among the various states and with foreign nations was one of the leading reasons the states called for a new federal government.

Meaning of the Commerce Clause

As originally understood, the Commerce Clause was intended to create a “free trade zone” throughout America, only giving Congress the power to strike down state laws that discriminated against the buying, selling, and transportation of out-of-state goods.

Madison, in 1832, wrote that the clause was “a necessary control on the conduct of some of the importing States towards their non-importing neighbors.” Never once, in the Federalist Papers or the debates during the Constitution’s ratification, did anyone suggest that the Commerce Clause was anything more than the power to end trade barriers among the states.

Ever looking to expand its power, Congress, with the acquiescence of the Supreme Court, long ago seized on the Commerce Clause as its authority to regulate pretty much every detail of our lives.

The Supreme Court has gone so far as to uphold legislation that prohibited local, noneconomic activity such as growing wheat or marijuana for personal consumption under the absurd theory that, since the home-grown product is used instead of that which is transported across state lines, it has an effect on interstate commerce. Such a theory transforms the federal government into one with unlimited powers.

But the health-care legislation goes even further than the court has previously upheld by requiring an individual person to engage in economic transaction with a private company (i.e., buy health insurance) or face a fine. That is an unprecedented and unconstitutional power grab by Congress that, if upheld, would leave no check on Congress’s power. The concept of federalism and limited government would be dead.

It is time for the Supreme Court to once again hold that the Constitution imposes restrictions on Congress and to close the general welfare clause and Commerce Clause expressways by which the federal government has become one of infinite powers rather than finite authority.

Nathan W. Tucker is an attorney in Davenport, Iowa, and the author of “We The People: The Only Cure to Judicial Activism.” A version of this essay originally appeared in The Iowa Republican.