No power for Congress to mandate

When Federal Judge Henry Hudson ruled that the Federal health care law’s mandate exceeded the authority granted to Congress under the Commerce Clause of the Constitution, my faith in our system of checks and balances was strengthened. This decision is 100% correct based on the plain meaning of the Constitution and historical judicial precedents.

The 10th Amendment declares that powers not delegated to the United States by the Constitution are “reserved” for the states or “the people.”   As with any piece of Federal legislation, including the Federal health care mandate, the first question asked by those who serve in Congress should be; where is the delegated authority in the Constitution to act at all?

Article 1, Section 8 is the section of the Constitution known as the Delegated Powers of Congress and is where most of the powers of Congress emanate from.  Nowhere in this section does Congress have the power to mandate the purchase of any product or service.  Some may argue that the “Commerce Clause” provides Congress with the power to regulate the insurance industry, however, in my view; the individual mandate provision in the law does not rise to the level of interstate commerce.  

While many proponents will argue that the mandate is similar to laws requiring drivers to obtain auto insurance, there are several key differences.  The auto insurance mandate leaves people with a choice as no one is required to own an automobile.  Most importantly, auto insurance regulation occurs at the state level.  This is clearly what the Founding Fathers would have preferred and is at the heart of the balance (state and federal power) between Article 1, Section 8, and the 10th Amendment.

Although happening in small and seemingly innocuous increments, the growing size and scope of government at all levels is one of the greatest threats to the freedoms we enjoy as Americans.  Often, politicians and the public in general are willing to allow small increases in government’s power in hopes that government will be able to solve some perceived problem we as a society are currently experiencing.  

“I hope we have once again reminded people that man is not free unless government is limited.  There’s a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts.”  These are the words of President Ronald Reagan and as with most things he said while serving as President, they are just as true today as they were when he said them.  Perhaps with the passage of time and the ever increasing size of government, Ronald Reagan’s quote should be taken to heart even more today!

The health care mandate bill cannot be reconciled with our Constitution.  No matter where one stands on health care reform, conservatives and liberals should be equally concerned about ignoring the limitation of powers our Founding Fathers wisely placed on the Federal government. In the decision by Judge Hudson, he wrote: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market…Allowing Congress to exert such authority, he said, “would invite unbridled exercise of federal police powers.”

Our founders brilliantly recognized our elected officials might violate the limiting provisions of the Constitution.  Judge Hudson’s decision is a critical part of the checks and balances within our Constitutional system of protecting individual freedoms and a government of limited power.

Jeff Perry

State Representative, Attorney & Adjunct Professor

About jeffperry

  • Vote3rdpartynow

    Let me toss out a thought I had and I welcome anyone’s response.

    Does it make a difference if the healthcare mandate is imposed by the federal government versus the state government?  Sure, we are all excited at the prospect of finding Obamacare unconstitutional due to the lack of federal authority to mandate the purchase of health insurance.  But does it make a difference, if in the end, we are mandated by the state instead?  Either way, the residents of Massachusetts are required to buy something that many don’t want, can’t afford, or won’t use.  Worse yet, is that what they are mandating the purchase of is so prohibitively expensive as to force many companies out of business, reduce profits, or in the case of individuals may even cause bankruptcy.  I wouldn’t mind so much if the state were mandating a $50 per month flu shot, but they are mandating $1,200 per month health insurance when my family is in perfect health.  The state is punishing people for no reason.

    The state government mandates health insurance coverage.  They determine who can be in the insurance business and what each policy must offer.  The state government even determines the pricing of the policies.  

    So why are we okay with this, when it seems to be far more intrusive than what the federal government was asking?

  • I want the freedom to make major life decisions (like changing jobs or starting a business).  But today, most people must factor in how to pay for health care, when making decisions.  Making sure we have health care deprives many people the freedom to make other decisions.  In fact, the only freedom conservatives want people to have is the freedom to decide whether they want to take the chance on financial ruin if they get sick without health care.  Shame on progressives like me letting conservatives lay claim to the concept of freedom within the context of health care.