2. ObamaCare and the Constitution: What would Jefferson and Madison think?
Attorney Nathan Tucker writes:
While the thought that the Constitution actually limits the power of Congress to enact legislation may be foreign to some Democrats, the framers of the Constitution intended for the federal government to be limited to the powers that are specifically enumerated, or listed, in the text of the document.
Out of the 17 named powers given to Congress in Section 8 of Article 1, however, none mentions anything about heath care, insurance, doctors, medical treatment, or anything approaching an enumerated power that would allow Congress to legislate our health.
Tucker says that Democrats “point to two constitutional provisions as their grant of authority to enact health-care legislation”: the “general welfare” clause and the Commerce Clause.
Tucker disputes this first claim:
The term “general welfare” appears twice in the Constitution, once in the Preamble and another time in the “tax and spend” clause. The Preamble to the Constitution, however, has never been considered a grant of power to the federal government.... The tax and spend clause, however, is an enumerated power given to Congress in the Constitution.... [But] [t]o read the term “general welfare” in the clause to be a broad grant of authority to Congress to tax for whatever purposes it deems are in the general welfare of the country would be to make a mockery of the Constitution.
He also takes issue with the second:
The [Commerce] clause...was simply meant to prevent trade wars between the states, a common occurrence under the Articles of Confederation..... As originally understood, the Commerce Clause was intended to create a “free trade zone” throughout America, only giving Congress the power to strike down state laws that discriminated against the buying, selling, and transportation of out-of-state goods.
But the health-care legislation goes even further than the court has previously upheld by requiring an individual person to engage in economic transaction with a private company (i.e., buy health insurance) or face a fine. That is an unprecedented and unconstitutional power grab by Congress that, if upheld, would leave no check on Congress’s power.
It is time for the Supreme Court to once again hold that the Constitution imposes restrictions on Congress and to close the general welfare clause and Commerce Clause expressways by which the federal government has become one of infinite powers rather than finite authority.
Nathan W. Tucker is an attorney in Davenport, Iowa, and the author of “We The People: The Only Cure to Judicial Activism.”