Far too many congressmen underestimate the political ramifications of passing a health care bill that may be unconstitutional. Far too few of them seem to understand why Obamacare’s constitutionality is seriously in doubt.
Consider the special Medicaid deal the Senate bill provided for Nebraska in order to buy the vote of Ben Nelson, that state’s senior senator. At least 13 state attorneys general last week announced plans to challenge the provision, which effectively would exempt Nebraska from paying for Medicaid expansions that the other 49 states must finance. Democrats should not scoff at this threat. The provision is patently unfair to the other 49 states. Worse, it seems to run afoul of Article I, Section 8, which gives Congress the power to “provide for the … general welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” Clearly, Nebraska’s sweetheart deal is not for “the general welfare,” nor is the financial contribution “uniform” if one state is exempt.
Then consider the Obamacare provision mandating that every individual buy health insurance. As a candidate, Barack Obama wisely opposed an individual mandate, but his pledge proved worthless. Yet numerous legal analysts challenge the mandate’s constitutionality. Last July, the Congressional Research Service explained why: “One could argue that while regulation of the health insurance industry or the health care system could be considered economic activity [subject to congressional authority], regulating a choice to purchase health insurance is not. It may also be questioned whether a requirement to purchase health insurance is really a [legitimate] regulation of an economic activity or enterprise. …”
Among several other legally dubious provisions, one stands out. Sen. Orrin Hatch, Utah Republican, along with former Ohio Secretary of State Ken Blackwell and American Civil Rights Union lawyer Kenneth Klukoswki, wrote last week that a requirement for states to establish “benefit exchanges” would trample the constitutional separation of powers between states and a frighteningly all-powerful federal government. In two cases in the 1990s, they noted, “the Supreme Court struck down two laws on the grounds that the Constitution forbids the federal government from commandeering any branch of state government to administer a federal program. That is … exactly what this [Obamacare] legislation would [illegally] do.”
The public resents it when the Constitution isn’t respected. National Constitution Center polling shows a strong popular attachment to the Constitution in generic statements/questions such as, “The U.S. Constitution is important to me” (91 percent agree), and “The Constitution doesn’t matter much in my daily life” (77 percent disagree). On more specific questions in a Constitution Center poll conducted by Associated Press in September, large majorities opposed numerous examples of “government intervention in the economy.” Most specifically, a majority disagreed with the idea, “the government should assure that everyone has health care insurance.”
Again and again, the public has rejected the “Washington knows best” approach to public policy, especially when the Constitution is in question. Congress should pay heed in the debate over health care.