Senator Hatch’s Health Insurance Constitutionality Test

SERIES: MEMBERS OF CONGRESS STANDING UP FOR CONSTITUTIONAL PROTECTIONS (MCSCP Series)

by KJ Kaufman

(Dec. 18, 2009) – Over the course of the past several months, numerous members in both Houses of Congress have been asked various iterations of a simple question:  What specific enumerated power in the Constitution grants the Congress the legislative authority to require an individual mandate to purchase health insurance?  The answers have varied, but for the most part can be summed up by Democratic Congressional respondents as a non-answer or misinformed response.  Here are just a few of the responses from our leaders on the left when the question was posed to them by cnsnews.com.

Nancy Pelosi (D-CA) Speaker of the House – cnsnews.com asked Speaker Pelosi:  “Madam Speaker where specifically does the Constitution grant Congress the authority to enact an individual health care insurance mandate?”  Speaker Pelosi’s answer:  “Are you Serious?  Are you Serious?”

Steny Hoyer (D-MD) House Majority Leader – cnsnews.com asked Representative Hoyer:  “Where in the Constitution was Congress granted the power to mandate that a person must b[u]y a health insurance policy?”  Representative Hoyer’s response:  “Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end…The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our Constitutional responsibility.”

Senator Blanche Lincoln (D-AR) – When asked a similar question to those posed above:   “Senator Blanche Lincoln told cnsnews.com that Congress has the authority to force individual Americans to buy health insurance because the U.S. Constitution ‘charges Congress with the health and well-being of the people’.”

Senator Mary Landrieu (D-LA) – Answering the same question as her colleagues:  “Sen. Mary Landrieu (D-La) told cnsnews.com she would leave it up to the ‘constitutional lawyers’ to explain exactly where Congress gets the constitutional authority to force Americans to buy health insurance…”

In response to the misinformation presented by legislative members of our federal government, The Post & Email has launched a new series highlighting those members of either branch of Congress who stand up for and illuminate our constitutional protections.  In the first installment of our series, we highlight Senator Orrin Hatch (R-UT), a lawyer by trade, who stood on the Senate floor on Friday, December 11, 2009 to educate his colleagues on the United States Constitution and their lack of constitutional authority to mandate individual health insurance purchases and the lack of uniform taxes on insurance plans within the States.

Senator Orrin Hatch Sets the Constitutional Record Straight

Senator Hatch began with a soliloquy on the limits placed on the Federal Government by the U.S. Constitution.  As captured by the C-SPAN cameras as well as placed in the Congressional Record, Senator Hatch explained:

We have only the powers the Constitution grants us because liberty requires limits on government power and we have our own responsibility to make sure we stay within those limit[s].

James Madison said that if men were angels, no government would be necessary, and if angels were to govern men, no limits on government would be necessary. Because neither men nor the governments they create are angelic, government and limits on government are both necessary to protect liberty–not just government but limits on government as well. Those limits come primarily from a written Constitution which delegates enumerated powers to the Federal Government.

Here is how the Supreme Court put it just a few years ago. This is in United States v. Morrison in 2000, quoting Marbury v. Madison—one of the most important decisions ever by the Supreme Court, probably the single most important decision—back in 1803:

“Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.”

The important word there happens to be “limits.”

No one likes limits, least of all politicians with grand plans and aggressive agendas. It is tempting to ignore or forget the limits the Constitution imposes on us by pretending the Constitution means whatever we want it to mean. But we take an oath to support and defend the Constitution, not to make the Constitution support and defend us. The Constitution cannot limit government if government controls the Constitution.

Senator Hatch continued educating his colleagues later in the soliloquy by stating:

A principle applied only to others is just politics, and politics alone cannot protect liberty. We must be willing to say that there are lines we may not cross, means we may not use, and steps we may not take.

The Constitution empowers Congress to do many things for the American people. Just as important, however, is that the Constitution also sets limits on our power. We cannot take the power without the limits.

Having shown his colleagues the limits of Federal power, Senator Hatch moved on to the specific legislative abuses in the current health care legislation.

Senator Hatch Discusses Federal Powers and State Powers

Senator Hatch would then layout the “several constitutional issues raised by the legislation” beginning with a Federal grab of State authority:

The first is the requirement in section 1501 that individuals obtain not simply health insurance but a certain level of insurance. Failure to meet this requirement results in a financial penalty which is to be assessed and collected through the Internal Revenue Code…

Right now, States are responsible for determining the policies that best meet the particular demographic needs and challenges of their own residents. That is the States. Massachusetts, for example, has decided to implement a health insurance mandate, while Utah has decided not to do so. This bill would eliminate this State flexibility so that the Federal Government may impose yet another one-size-fits-all mandate on all 50 States and on every American. I cannot think of anything more at odds with the system of federalism that America’s Founders established, a system designed to limit government and protect liberty.

I can understand why this mandate is so attractive to those who believe in an all-powerful Federal Government. After all, raising the percentage of those with health insurance is easy by simply ordering those without insurance to buy it. But while government may choose the ends, the Constitution determines the permissible means. That is why one of the basic principles is that Congress must identify at least one of our powers enumerated in the Constitution as the basis for any legislation we ultimately pass.

Mandate to Purchase Health Insurance Lacks Constitutional Authority

Senator Hatch begins his assault on the fundamental lack of Constitutional authority within the present health care legislation.  His argument denies there is Congressional authority within the Constitution to mandate the purchase of health insurance.  Senator Hatch argues:

The health insurance mandate is separate from the penalty used to enforce it. The only enumerated power that can conceivably justify the mandate is the power to regulate interstate commerce. For more than a century, the Supreme Court treated this as meaning what it says. Congress cannot use its power to regulate commerce in order to regulate something that is not commerce. Congress cannot use its power to regulate interstate commerce in order to regulate intrastate commerce.

In classic judicial understatement, the Supreme Court has said that “our understanding of the reach of the commerce clause ….. has evolved over time.” Indeed, it has. Since the 1930s, the Supreme Court has expanded the power to regulate interstate commerce to include regulating activities that substantially affect interstate commerce. That is obviously far beyond, by orders of magnitude, what the commerce power was intended to mean, but that is where things stand today, and some say it justifies this health insurance mandate in this bill.

But Senator Hatch didn’t stop there.  He then looked in depth at the “commerce clause” enumerated in Article I, Section 8 of the U.S. Constitution.  He explained to his colleagues, even given the Supreme Courts over-reach of the commerce clause, there remain limits on the use of the commerce clause when enacting legislation.  He gets right to the point of the commerce clause in an articulate, elocution of law and precedence.

Activities that can be Regulated vs. Forcing One to Engage in an Activity

Senator Hatch tackles the expanded commerce clause argument illuminating the difference between regulating activities versus forcing an individual to engage in an activity, the latter being unprecedented in our history.  As Senator Hatch describes:

Using the Constitution or even the Supreme Court’s revision of the Constitution as a guide requires more than a good intention fueled by an active imagination. The Supreme Court has certainly expanded the category of activities–get that word “activities”–that Congress may regulate. But every one of its cases has involved Congress seeking to regulate just that: activities in which people have chosen to engage. Even the Supreme Court has never abandoned that category altogether and allowed Congress instead to require that individuals engage in activities, in this case by purchasing a particular good or service. The Court has never done that.

Let me mention just three of the Supreme Court’s commerce clause cases. In its very first case, Gibbons v. Ogden in 1824, Thomas Gibbons had received a Federal license to operate a steamboat between New Jersey and New York and wanted to compete with Aaron Ogden, who had been granted a steamboat monopoly by New York State. In Wickard v. Filburn, Roscoe Filburn used the winter wheat he planted on his Ohio farm to feed his livestock and make bread for his own dinner table. In the winter of 1942, he grew more wheat than allowed under the Agricultural Adjustment Act and challenged the resulting fine. And in Hodel v. Surface Mining & Reclamation Association, companies challenged a Federal statute regulating surface coal mining.

These cases have two things in common. The Supreme Court upheld Federal authority in each case, but each case involved an activity–remember the word “activity”–in which individuals chose to engage. There would have been no Gibbons v. Ogden if Thomas Gibbons had not chosen to operate a steamboat. Congress could regulate his activity but could not have required that he engage in it. There would have been no Wickard v. Filburn if Roscoe Filburn had not chosen to grow wheat. Congress could regulate his activity but not have required that he engage in it. And there would have been no Hodel case if companies had not chosen to mine coal. Congress could regulate their activity but could not have required that they engage in it.

The key word in the commerce clause is the word “regulate,” and the key word in every Supreme Court case about the commerce clause is the word “activity.” Regulating an activity in which individuals chose to engage is one thing; requiring that they engage in that activity is another.

Continuing on, Senator Hatch having made substantial arguments supporting his position on the limitations on the Federal Government and the limitations on the commerce clause, he admonishes his colleagues as follows:

If there is no difference between regulating and requiring what people do, if there is no difference between incentives and mandates, if Congress may require that individuals purchase a particular good or service, why did we even bother with the Cash for Clunkers Program? Why did we bother with TARP or other bailouts? We could simply require that Americans buy certain cars or appliances, invest in certain companies, or deposit their paychecks in certain banks. For that matter, we could attack the obesity problem by requiring Americans to buy fruits and vegetables and to eat only those.

Some say that because State governments may require drivers to buy car insurance, the Federal Government may require that everyone purchase health insurance. That is too simplistic, that argument. Simply stating that point should be enough to refute it. States may do many things that the Federal Government may not, and if you do not drive a car, you do not have to buy car insurance. This legislation would require individuals to have health insurance simply because they exist, even if they never see a doctor for the rest of their lives.

To this point, Senator Hatch had successfully argued:  1) There are limits on Federal powers (traditionally known as federalism), 2) There are limitations under the commerce clause, specifically regulating activities vs. forcing the engagement in activities and 3) Supreme Court cases (although expanding the commerce clause) are in agreement with Senator Hatch’s views on the limitations on the powers of the Federal Government to regulate commerce.  He, therefore, concluded to this point that the mandate to purchase health insurance contained in the present health care legislation being debated in the Senate lacked Constitutional authority.  Senator Hatch summarized the lack of Constitutional authority with four distinct points.

Senator Hatch’s Four Distinct Arguments against those claiming Constitutional Authority to Mandate the Purchase of Health Insurance

Senator Hatch hones in on his Constitutional opponents stating:

The defenders of this health insurance mandate must know that they are on shaky constitutional ground. The bill before us now includes findings which attempt to connect the mandate to the Constitution. I assume they are the best arguments that this unprecedented and novel mandate is constitutional.

Those findings fail in at least four ways.

First, the findings say that the requirement to purchase health insurance will add millions of new consumers to the health insurance market. I cannot dispute the observation that requiring more people to purchase health insurance will result in more people having health insurance. I think that seems quite self-evident. But the question is not the effect of the mandate but the authority for the mandate. Liberty requires that the ends cannot justify the means.

The findings [Page: S13015] also fail to establish that the insurance mandate is constitutional by failing to offer a single example–a single precedent, a single case–in which Congress has required individuals to purchase a particular good or service or the courts have upheld such a requirement. The cases I described are typical, and similar examples are legion. Every one involves–every one of those cases I have cited–the regulation of activity in which individuals choose to engage. Requiring that the individual engage in such activity is a difference not in degree but in kind.

The findings also fail to answer the question by observing that States such as Massachusetts have required that individuals purchase health insurance. As I noted regarding the example of car insurance, our Federal and State system allows States to do many things that the Federal Government may not. That is one of those limits on the Federal Government that is necessary to protect liberty.

The findings fail to answer the question by mistakenly focusing on whether Congress may regulate the sale of insurance. That misses the point in two respects. Simply because Congress may regulate the sale of health insurance does not mean that the Congress may require it. Simply because Congress may regulate the sale of health insurance does not mean that Congress may regulate the purchase of health insurance. This legislation requires you to believe that nonactivity is the same as activity; that choosing not to do something is the same as choosing to do it; that regulating what individuals do is the same as requiring them to do it. That notion makes no common sense, and it certainly makes no constitutional sense. If Congress can require individuals to spend their own money on a particular good or service simply because Congress thinks it is important, then the Constitution means whatever Congress says it means and there are and will be no limits to the Federal Government’s power over each and every one of our lives.

That version of Federal power will be exactly what the Supreme Court in Lopez prohibited; namely, that there would be no activity by individuals that the Federal Government may not control. Neither the power to regulate interstate granted by the Constitution nor the power to regulate activities that substantially affect interstate commerce granted by the Supreme Court go that far. They don’t go that far.

The American people agree. A national poll conducted last month found that 75 percent of Americans believe that requiring them to purchase health insurance is unconstitutional because Congress’s power to regulate commerce does not include telling Americans what they must buy. By a margin of more than 7 to 1, Americans believe that elected officials should be more concerned with upholding the Constitution regardless of what might be popular than enacting legislation even if it is not constitutional.

No Authority in the General Welfare Clause Either

Having fully debunked his opponents arguments that the commerce clause in the Constitution granted Congress the authority to mandate individual health insurance purchases, Senator Hatch moved on to the arguments made by his colleagues in the House who argued the general welfare clause in the U.S. Constitution provides them the authority.  Senator Hatch explains:

Some defenders of this legislation such as the House majority leader have said that Congress may require individuals to purchase health insurance because it can pass legislation to promote the general welfare. The only thing necessary to dismiss this argument is to read the Constitution. Read the Constitution. That dismisses this argument. Just read it. Read the Constitution. Article I refers to general welfare as a purpose, not as a power. It is a purpose that limits rather than expands Congress’s power to tax and to spend. The requirement that individuals purchase health insurance is not an exercise of either the power to tax or the power to spend, and so even the purpose of general welfare is not connected to it at all. Needless to say, it makes no sense to include in a written Constitution designed to limit Federal Government power an open-ended, catchall provision empowering Congress to do anything it thinks serves the general welfare.

If America’s Founders wanted to create a Federal Government with that much power, they could have written a much shorter Constitution, one that simply told Congress to go for it and legislate well. That is what they could have done. They didn’t do that, thank goodness.

Senator Hatch Enlists Constitutional Scholars to Support His Arguments

The Heritage Foundation

Senator Hatch had laid out a sound understanding of the Constitution, its limitations, and the Supreme Courts support of those limitations, but he didn’t choose to go it alone.  He enlisted Constitutional scholars supporting his point to show his fellow Senators the errors in their thinking.  He first cites the Heritage Foundation and its report:

The Heritage Foundation has just published an important paper arguing that this health insurance mandate is both unprecedented and unconstitutional. It is authored by Professor Randy Barnett, the Cormack Waterhouse Professor of Legal Theory at the George Washington Law Center; Nathaniel Stewart, an attorney with the prestigious law firm of White & Case, and Todd Gaziano, Director of the Center for Judicial and Legal Studies at the Heritage Foundation.

I ask unanimous consent to have the conclusion portion of the Legal Memorandum published by the Heritage Foundation printed in the Record.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Conclusion

In theory, the proposed mandate for individuals to purchase health insurance could be severed from the rest of the 2,000-plus-page “reform” bill. The legislation’s key sponsors, however, have made it clear that the mandate is an integral, indeed “essential,” part of the bill. After all, the revenues paid by conscripted citizens to the insurance companies are needed to compensate for the increased costs imposed upon these companies and the health care industry by the myriad regulations of this bill.

The very reason why an unpopular health insurance mandate has been included in these bills shows why, if it is held unconstitutional, the remainder of the scheme will prove politically and economically disastrous. Members need only recall how the Supreme Court’s decision in Buckley v. Valeo–which invalidated caps on campaign spending as unconstitutional, while leaving the rest of the scheme intact–has created 30 plus years of incoherent and pernicious regulations of campaign financing and the need for repeated “reforms.” Only this time, the public is aligned against a scheme that will require repeated unpopular votes, especially to raise taxes to compensate for the absence of the health insurance mandate.

These political considerations are beyond the scope of this paper, and the expertise of its authors. But Senators and Representatives need to know that, despite what they have been told, the health insurance mandate is highly vulnerable to challenge because it is, in truth, unconstitutional. And political considerations aside, each legislator owes a duty to uphold the Constitution.

C-SPAN breaks up its coverage of Senator Hatch’s remarks into three parts.  The aforementioned quoted sections were contained in Part 1, linked and referenced above.  The remaining comments made by Senator Hatch are contained within Part 3 of C-SPAN’s coverage.

The Barbara Jordan and Mickey Leland School of Public Affairs, Texas Southern University

Citing the authors Michael Adams and Carroll G. Robinson, Esq. from the Barbara Jordan and Mickey Leland School of Public Affairs of Texas Southern University, Senator Hatch quotes an excerpt from their writings on the issue:

Our reading of the Constitution and Supreme Court precedent could not identify any reasonable basis, expressed or implied, for granting Congress the broad, sweeping and unprecedented power that is represented by the individual mandate requirement. In fact, we could not find any court decision, state or federal, that said or implied that the Constitution gave Congress the power to mandate citizens buy a particular good or service or be subject to a financial penalty levied by the government for not doing so.

After employing scholars to support his arguments thus far, Senator Hatch expands his arguments to include other unconstitutional portions of the bill.

Taking on the Abuses of the Uniformity Clause

Senator Hatch now sets his sights on the legislations’ abuses of  the uniformity clause with respect to unequal taxation imposed on the States.  He argues:

The Congress has wide latitude in determining what to tax and may tailor a regional solution to a geographically isolated problem, but laws drawn explicitly in terms of State lines will receive heightened scrutiny. By the plain terms of the legislation before us, insurance plans providing a certain level of benefits in one State will be taxed while the very same plans providing the very same benefits in another will not be taxed. We do not yet know what States will be treated differently, but we do know, according to this bill, that 17 of them will. That actually makes the constitutional point more clearly by identifying the State-based discrimination more starkly. Congress may decide to tax insurance plans with benefits that exceed a particular limit, but the tax must have the same force and effect wherever that subject of the tax is found. That is the clear meaning of the constitutional provision and the clear holding of the Supreme Court’s precedents. Taxing the same insurance plans differently in one State than in another is the opposite of taxing them uniformly throughout the United States.

I commend to my colleagues the work of Professor Thomas Colby of the George Washington University Law School, whose comprehensive work on the uniformity clause was published in volume 91 of the Virginia Law Review.

I asked the Congressional Research Service to look at this uniformity clause issue. Its report confirmed that this differential tax on high-cost insurance plans is drawn explicitly along State lines and that a court will more closely scrutinize the reasons for the State-based distinction. It also concluded that Congress has not articulated any justification for singling out certain States for different treatment. I have raised this issue over and over throughout the process of developing and considering this legislation. I serve on both of the Senate committees that are involved in this process. In fact, I can say I have served on three: not only the HELP Committee–the Health, Education, Labor and Pensions Committee–but also the Finance Committee, as well as the Judiciary Committee that, for some reason, has some great interest in the Constitution. I have never heard any justification for singling out certain States for different tax treatment.

The attitude seems to be that this is what the majority wants to do, so they are going to do it no matter what the Constitution says. That may be politically possible, but that does not make it constitutionally permissible.

Senator Hatch Concludes by Once Again Arguing for our Liberties and Freedoms

After laying out a sound case for the limitation on the Federal Government with specific arguments regarding the commerce, general welfare and uniformity clauses, Senator Hatch concludes his soliloquy by once again speaking to “We The People” and assuring us of our freedoms and liberties guaranteed within our Constitution.  Senator Hatch concludes:

Let me return to the principles with which I began. Liberty requires limits on government power. Those limits come primarily from a written Constitution which delegates enumerated powers to Congress. We must be able to identify at least one of those enumerated powers to justify legislation, and those powers should not mean whatever we, in our delightful wisdom, want them to mean.

Those principles lead me to conclude that Congress does not have the authority to require that individuals purchase health insurance, and that Congress cannot tax certain health insurance plans in some States but not in others.

These, and the others I have mentioned, are only some of the constitutional issues raised by this legislation. Any of these, and others I have not mentioned, could well be the basis for future litigation challenging this legislation should it become law.

Writing for the Supreme Court in 1991, Justice Sandra Day O’Connor reminded us:

“The Constitution created a Federal Government of limited powers.”

America’s Founders, she wrote, limited Federal Government power to “protect our fundamental liberties.”

Here is the way Justice O’Connor put it, writing for the Supreme Court in New York v. United States in 1992:

“But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location, as an expedient solution to the crisis of the day.”

That is a pretty remarkable statement. I could not have said it better myself. Those are either principles we must obey or clichés we may ignore.

If the Constitution means anything anymore, if it does what it was created to do by not only empowering but, more importantly, limiting government power, then now is the time to stand on principle rather than to slip on politics.

When our leadership takes a stand on our behalf, The Post & Email feels it is important to highlight their efforts and show the extent to which they have gone to support our liberty.  Senator Hatch acted as a true Statesman on December 11, 2009, and it has been our great pleasure to highlight his efforts in his words and actions on the Senate floor during the health care debate.  As previously mentioned, this is the first installment in a regular series at The Post & Email that will highlight members of Congress speaking to Constitutional protections.  We hope that you have enjoyed this first installment in the series.  We wish to thank Senator Hatch for his efforts and eloquence.