Is Health Care Legislation Unconstitutional

[mightymoose]

I don't want to argue over whether the health care legislation making its way through the House and Senate is a good idea or moral/immoral... what I am wondering is where the Congress derives the authority to enact such legislation.

It seems to me that the program that is being proposed, in any of its various forms, is outside the bounds of the enumerated powers of Congress... the closest being Article 1 Section 8 Clause 1, using the "general welfare" clause. That clause is regarding the levying of taxes, which this legislation is not, nor is it uniform. Medicaid and Social Security are funded by taxes in this way, and are therefor legitimate, but this health care legislation is a totally different animal.

This question has been kicked around in some circles, pretty much brought up by those on the right and dismissed by those on the left... but never answered.

Anyone with some Constitution expertise want to chime in on this, and perhaps explain what the Supreme Court might be able to do if the legislation is passed by the Congress and approved by the "president", but is unconstitutional?

I realize the court can't do anything until someone raises the argument... but I am sure that would happen quite quickly.

 

[CdwJava]

I think we will have to wait and see what law is enacted. At this point, we do not have a law, we have bill from each house - one of which is still being debated, as I recall.

 

[mightymoose]

Yes... but in all its various forms, it seems entirely unconstitutional.
It is mind boggling that they spend so much time debating legislation that they do not have authority to pass... and even more mind boggling that they are managing to pass the legislation without even acknowledging the seemingly significant argument that the Constitution does not permit it in the first place.

Nancy Pelosi has gone on record saying that Congress can enact this legislation through the interstate commerce clause... which seems absurd.

Regardless of what version of the bill passes... if it ever does... I am wondering if Congress even has the authority from the Constitution to do it. It is not a tax. It is not interstate commerce, and not being either of these then it does not fall into the category of "necessary and proper".

 

[mightymoose]

I was debating in another forum with a person that insists the Supreme Court's ruling in Gonzles v Raich gives Congress the authority to enact this legislation. I know some members of the Congress are relying on the commerce clause of the Constitution to enact the law, but the Raich decision seems off course.
It is the case in which the court ruled that the commerce clause gave the federal government to enforce the law regarding marijuana in spite of state laws enacted to allow it for medicinal use. I guess that Raich ruling is seen as a green light for Congress to do what it wants under the name of "commerce", but I don't see it as being that broad.
Anyone have any input as to whether Raich has any control on the status of the pending health care legislation?
I understand Arizona has a ballot measure ready to go that will exempt it from the federal legislation if past- using the 10th Amendment to opt out.
There are some other state AG's looking into lawsuits as well for various reasons... the main one being Nebraska's exemption from Medicaid payments which will have to be paid by everyone else.

 

[mightymoose]

I also don't see health care as being commerce among the states. It is certainly commerce within each state, but we do not purchase health care across state lines... so how can the feds regulate it?

 

[elhoward]

Your argument that health care isn't interstate commerce is demonstrably false. Insurance is usually purchased from out-of-state companies; every states does not have it's own independent insurance industry! Personally, I am vehemently opposed to Gonzles v Raich, as it sets a precedent that the federal government may regulate anything based on the premise that it could potentially be sold across state lines. This completely wipes away the concept of states rights, since anything can be done for money! However, I believe the federal government does have the authority to regulate insurance purchased from an out-of-state company, and they also have the authority to create insurance standards. Whether or not they have the authority to supercede the state's insurance regulation is a valid question; I'd be inclined to argue for state's rights on that issue.

 

[army judge]

I also don't see health care as being commerce among the states. It is certainly commerce within each state, but we do not purchase health care across state lines... so how can the feds regulate it?

The feds don't regulate health care.
They control it because of Medicare and Medicaid.
They control it because they pour so much money into it via Medicare and Medicaid.
This health care debate will soon be over.
Much like Obama and his presidency, this is a dead bill walking.
This creature will never see the light of day.
But, should it somehow make its way to Obama's soon to be vacated desk, it'll be overturned by the Republican majority; soon after the 2010 elections!

 

[cbg]

I also don't see health care as being commerce among the states. It is certainly commerce within each state, but we do not purchase health care across state lines... so how can the feds regulate it?

Maybe you don't. I live in Massachusetts; I send my premiums each month to Tennessee. I have also administered many plans based in MA, which covers employees in multiple states. I don't know how you can say that's not interstate commerce. And Article 1, Section 8 of the Constitution specifically gives Congress the right to regulate interstate commerce.

 

[jharris352]

The short answer is YES. There are no powers in the Constitution that would allow Congress to force you to buy health insurance (and no it is not like car insurance). It doesn't fall under the Commerce Clause because it is delivered for the most part within one state. This bill, even in it's weakened form is a monster.

 

[cbg]

FOR THE MOST PART? Did you read my post?

I live in MA. I have had health care treatment in NH. I pay my premiums to TN. For the most part, is not entirely.

If it's interstate commerce when an employer buys their supplies across the state line, and it is, why is it not interstate commerce when my health care crosses state lines?

 

[jharris352]

First, I wasn't answering your post, so no I didn't read your post. I was answering Moose. As for any individual it may be interstate commerce. But when a doctor gives you care, you rarely go to another state to get it. You might, there are others who do, but most don't. So, for the most part it isn't. Where they buy there supplies is not important. That means their supplier is engaging in interstate commerce. When you go to the doctor or hospital you are not going across state lines. See what I mean? YOU may go to Maine, but most people aren't in your position. Even insurance is not really across state lines, though you pay in TN they are a alien corporation doing business in your state, not elsewhere when you buy it.