When It Comes To Health Care, The Left Doesn’t “Worry About The Constitution”

Posted on Mon 04/05/2010 by


By Conn Carroll

Rep. Phil Hare (D-IL) voted for Obamacare. When questioned by his constituents to identify what part of the Constitution empowers the federal government to force Americans to buy health insurance, Rep. Hare replies: “I don’t worry about the Constitution on this to be honest.” We applaud Rep. Hare for his honesty, but his vote for Obamacare already proved he does not care if the legislation he votes for is unconstitutional. As The Wall Street Journal explains this morning:   …  

All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I. The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can’t Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?

This is why a 1994 Congressional Budget Office Memorandum wrote about the individual mandate: “The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

As Constitutional scholars Randy Barnett, Nathaniel Stewart and Todd Gaziano have documented, the individual mandate can not be justified by the Article I, section 8 taxing clause either:

Should it adopt any of these constitutional taxing and spending measures, Congress would have to incur the political costs arising from increasing the income tax and the long-term budget implications of issuing tax credits. Precisely to avoid incurring these political costs, Congress is calling fines in the Internal Revenue Code “shared responsibility penalties” so that persons fund the cost of its new regulatory scheme by channeling money through private insurance companies in the form of “premiums.” It is likely that the Supreme Court will find this effort to avoid political and fiscal accountability a pretextual assertion of Congress’s taxation powers and therefore, unconstitutional.

But Rep. Hale says he does not care about any of this. Fair enough. But he has his facts wrong on what he says he cares about too. At the end of the video Hale says: “At the end of the day, I want to bring insurance to every person who lives in this country.” When the videographer points out that Obamacare does not do that, Hare replies: “Says who, you?”

No Rep. Crane. Says the Congressional Budget Office. According to the CBO, after nearly $1 trillion in new spending Obamacare would still leave 23 million Americans without health insurance.

Conn Carroll is the Assistant Director of Strategic Communications at The Heritage Foundation and is also an Editor at The Foundry.

Read more from The Heritage Foundation at