Does the Healthcare Bill Violate the Constitution?

Yesterday we discussed the Constitutional issues that have become cause for alarm when one State is exempted from a tax that all others must pay. Today I wish to raise question with the Constitutional authority Congress claims to possess to enact healthcare reforms in the first place. When the question of Constitutional authority was posed to the members of Congress we got some very interesting answers. Nancy Pelosi would only ask rhetorically “Are you serious?” Mary Landrieu said “We have some very talented Constitutional lawyers on staff that can answer that.” which in the language of politics means “I don’t know”.

The closest thing to an answer we got from a member of Congress on this very serious issue came from Congressman James Clyburn (D-SC). Representative Clyburn said that “most of what we (Congress) do here (in Washington) is not authorized in the Constitution.” I can only take that as an admission that they know they are in direct violation of the Constitution and mean to keep violating the supreme law of the land in order to advance their agenda.

The Tenth Amendment states:

Amendment 10 - Powers of the States and People.

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.

The Constitution also clearly spells out, or enumerates, the powers that were delegated to the Federal government by the Constitution under Section Eight. That section reads:

Section 8 - Powers of Congress

1- The 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
2- To borrow money on the credit of the United States;
3- To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
4- To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
5- To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
6- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
7- To establish Post Offices and Post Roads;
8- 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;
9- To constitute Tribunals inferior to the Supreme Court;
10- To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
11- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13- To provide and maintain a Navy;
14- To make Rules for the Government and Regulation of the land and naval Forces;
15- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
16- To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
17- To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
18- To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

For years the Congress has been forcing legislation upon us claiming to promote the “general welfare, taking their authority from the first paragraph of Section Eight. They have similarly misused the commerce clause which gives the Congress the authority to “regulate” commerce between the States (item 3 above). While that seems reasonable, at least to them, it does require an examination of what those phrases meant to the men that drafted the Constitution before Congress can derive authority from those clauses.

To “regulate” was a very specific term at the time the Constitution was drafted. It meant exactly what it says; to make regular. The commerce clause was intended to provide Congress with the tools it needed to inure that the conduct of business between the states was uniform. It was intended to allow businesses in any state, free and unfettered access to markets anywhere. It was never meant to give the Congress authority to license, impose regulatory control or provide federal oversight of American businesses.

The term “General Welfare” is responsible for more unlawful impositions by the Federal Government than any one phrase in the Constitution. To understand it, one must read it literally. Since the architects of the Constitution had taken great pains to use the words States, citizens and people in other areas of the document, to “provide for the common Defence and general Welfare of the United States” only gives the Congress authority to provide for the “General Welfare” of the United States as a governmental entity; the United States as a body of states and not the people that reside within those states.

In the Federalist Papers, Thomas Jefferson wrote:

“To lay taxes to provide for the general welfare of the United States, that is to say, "to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.

It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.”

We can clearly see by Jefferson’s text that the “General Welfare” that Congress has been charged with providing for is the Welfare of the Union and not of its citizens. He adds further that to interpret the clause as the Congress is now doing, is dangerous and if allowed, could use that interpretation to do as much evil as good. I think it is fair to say that we have reached the point where the interpretation is being used by Congress to do great evil and this bill is only one example. A healthcare panel that will determine your care options in place of your doctor is about as evil as it gets. Oh your doctor can still provide the care he believes you need. He just can’t expect to get paid for his services if he strays from the mandates of the Health Benefits Panel.

Paul