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Opponents of the health care bill that was signed into law today by President Obama are already arguing that it’s not constitutional. Many people are asking where the US Constitution gives Congress the right to force people to buy a product.

The answers are these:

1. Under the Commerce Clause of the Constitution, Congress can mandate individuals to take a particular action as long as it affects interstate commerce. Interstate commerce encompasses all forms of communication and transportation and all movements of people and things across state lines. Without question, health care and health coverage are issues that affect interstate commerce; therefore, Congress can regulate them.

2. The Constitution grants Congress the right to tax Americans. If Congress decides to that everyone who does X or who fails to do Y owes a tax of $750, then those who do X and those who don’t do Y legally owe that tax. Notably, the individual mandate to buy health insurance, which says that anyone who doesn’t purchase coverage will have to pay a penalty, has been inserted into the tax code.

Whether or not people agree with the health care bill, opposing it on legal grounds is probably not the best use of their time and energy. Instead, we can try to support the immediate improvements the country will see this year, including an end to exclusion for pre-existing conditions, to lifetime caps on payments, and to dropped coverage for becoming sick.


  1. Gravatar for Ed

    Wow, you're a lawyer? Did you get your degree from a Cracker Jacks box? I wouldn't hire you to cut my lawn much less represent me an any legal proceedings. You're "understanding" or lackthereof of the Commerce Clause and Tax laws are astounding.

  2. Gravatar for Ted

    Hey Ed,

    FYI Commerce Act was instrumental in passing other socially conscious programs like the (FDA) Food Drug Administration. It's supposed to find the Mad cow disease before it affects people. In your case game-over buddy you're talking like a mad man.

  3. Gravatar for darkage

    Actually mr 'Attorney" (too bad your not a CONSTITUTIONAL ATTORNEY...)

    i will keep it simple for you.

    Interstate Commerce Clause allows the Government to Regulate "Commerce" across state lines.

    if i dont buy health care, i create NO COMMERCE. the interstate Commerce Clause dictates interstate commerce, not the lack thereof.

    you cannot put the cart before the horse!

    So you're saying that the government has the authority to force you to buy something so they have something to Regulate?!

  4. Gravatar for John

    Sorry, Ed and Darkage, but Mr. Ferrara is right:

    In the first place, it's simply impossible to abstain from health care "commerce." Even without purchasing health insurance, we will all need to see doctors at some point in our lives, and will spend money out of our own pockets to do so. Congress may regulate (and redirect) those expenditures consistent with its commerce and taxing powers.

    Moreover, this kind of economic "inactivity" has been fair game for congressional regulation since 1942, when our Supreme Court decided a case called Wickard v. Filburn.

    I see the logic in your arguments. However, our courts have uniformly interpreted the Constitution to allow this type of law.

  5. Gravatar for darkage

    One big problem with this scenario is that it opens the way for vast abuse of power 'constitutionally' by both congress and the President...

    lets say this bill is deemed Constitutional....

    the government can FORCE people to either buy this product or pay a fine... or go to jail...

    This is essentially indentured servitude. (13th Amendement)

    It also opens the door to MASSIVE abuse of power.. how?

    Lets say that tomorrow the Ambassador of Japan shows up at the presidents office and says 'My good friend, Our TVs haven't been selling well of late. Can you perhaps do something about this?'

    What does the President do? gets his Democratic friends to push a new law that requires people to purchase a 50inch plasma television of Toshiba design, or face penalties or jail time.

    Why of course this is Constitutional.. right? Its covered by the Interstate Commerce Clause.. right?

    Where is the limit to this DICTATORIAL authority?

    To quote the Constitution

    Amendment V

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    read that last sentence..

    " nor shall private property be taken for public use, without just compensation."

    My private property is the money i work for. the taking is the taxes taken for someone elses health care and NOT giving me just compensation in return.

    I watched the 'debate' during the vote on the bill the other day...

    I listened to all these Democrats quote past presidents.. but one president came to MY mind that they didn't DARE to quote..

    and that is Franklin Pierce, the 14th President of the United States of America…

    in 1854 he Vetoed a Mental Health Bill stating…

    “A citizens health is a PRIVATE MATTER and the Government has NO business in it.”

    (I do belive that in law this is called establishing a precedent)

    Interesting that back then the PRESIDENT of the United States knew the Constitution, and that the current President today does not.

    And that old lady they kept touting about that had to choose between her health insurance and her utilities?

    Why, good news for her! She no longer has to worry.. she can kiss her utilities goodbye, because now she HAS to pay for the Health Insurance or else pay a fine or go to jail!

    Thank you Democrats and Obama for helping her with her choices!

    And its constitutional to boot!

    What if my religion forbids me to see a doctor? Forcing me to purchase Health Care under the claim that I 'need it' opens the door to violate the Freedom of Religion.

    the 10th Amendment..

    It states, "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."

    No where in the Constitution does it state in any fashion that the Government may impose upon the people a demand to carry Health Insurance.

    Health regulations in both the practice and the direction of Insurance companies have always fallen within the STATE's pervue. The Government is obviously attempting to take this right away from the states and the People.

    Article I Section 8

    The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

    Again, the last part.....

    "but all duties, imposts and excises shall be uniform throughout the United States"

    by saying that I make 50k a year and must pay this tax and you make 20k a year and do NOT have to pay this tax violates the Constitution right there.

  6. Gravatar for darkage

    The full definition of Article I, Section is very clearly laid out....

    Show me where Congress has the power to enact taxes to pay for health care or even aything close.

    (Genreal Welfare does NOT apply)

    Section. 8. 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;

    To borrow Money on the credit of the United States;

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

    To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

    To establish Post Offices and post Roads;

    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;

    To constitute Tribunals inferior to the supreme Court;

    To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    To provide and maintain a Navy;

    To make Rules for the Government and Regulation of the land and naval Forces;

    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    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;

    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

    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.

  7. Gravatar for help4death


    darkages wrote:"One big problem with this scenario is that it opens the way for vast abuse of power 'constitutionally' by both congress and the President.."

    my response: You are right in seen it as abuse of power, but you are wrong in thinking that the healthcare mandate would open it up. The fact is that the posibility of power abuse was opened since 1942 with Wickard v. Filburn (as john posted).

    darkages wrote: "What if my religion forbids me to see a doctor?"

    My response: the mandate includes exceptions for religion.. you got more reading to do...

    and finally about the commerce among states, the strongest argument of supreme court withholding such mandates is the following:

    "the cumulative effect of your attempt not to participate in the market has an effect on markets"..

    Which basically can means that if you don't buy insurace, you can affect the local insurance market, then the local insurance market can affect the state's market, and states markets definetely affect interstate markets...

    I'm not saying that it is not possible for these arguments to be rejected at the supreme court, the truth is it is going to be very interesting to see all these events tourn in the near future...

  8. Gravatar for Ed


    The religious exception is not all encompassing.

    "the cumulative effect of your attempt not to participate in the market has an effect on markets".

    This too does not apply. Roscoe Filburn DID in fact SELL his wheat and was in fact participating willingly in commerce, he provided this commerce. He was not forced to participate by government and those people who didn't buy wheat weren't regulated! He was forced to destroy his crop not forced to be regulated!

    "Filburn bristled at the Depression-era regulations of the Agricultural Adjustment Act, which set a wheat production quota to avoid excess supplies and low prices. Before Uncle Sam intruded upon his life, Filburn raised a crop of winter wheat on his 23 acres. He sold part of the wheat and used the rest for home consumption and to maintain a herd of dairy cattle and a poultry and egg business. In 1941, the feds told Filburn he could produce wheat on just under half of his 23 acres. He went ahead and planted all the land and went to court claiming that the home-consumption of a trivial amount of wheat couldn't be touched by Congress' power to regulate interstate commerce. But the Supreme Court disagreed."

    So this guy broke the rules (fair or not is another story), but he was not forced to particulate in commerce or regulated.

    With the Monson pot case in 2005, she too was already involved in growing pot!

    Just because people live doesn't mean they affect the health care market anymore than they affect any other market! Under that perverse thinking people can be mandated by government to by anything! There would be no defense to what government says you have to buy.

  9. Gravatar for help4death

    Ed wrote: "The religious exception is not all encompassing."

    the bill says:

    "shall not apply to any individual (and any child residing with such individual) for any period if such individual has in effect an exemption which certifies that such individual is a member of a recognized religious sect or division . . . and an adherent of established tenets or teachings of such sect or division. . . ."

    my response: you be the judge of that! =D

    Ed wrote: "He (Roscoe Filburn)was not forced to participate by government "

    my response: you are right, and I don't know how this will end up but the final strech of the supreme court ruling was the interstate commerce clause of the constitution. My point here is that historically interstate commerce has been over streched...

    There is one other thing, the governemnt forced businesses NOT TO DENY commerce to blacks (civil rights act 1964), basically forcing business to engage in comerce with blacks... again, it is a strech, but it was never objected...

    This can mean that the supreme court would probably have to go back to all possible related laws written after 1941, and back track... Then do the same (probably) with the civil rights act of 1964.

    Ed wrote: "Just because people live doesn't mean they affect the health care market anymore than they affect any other market!"

    my response: In fact they actually do...remember the undeniable effect of costs of insurances premiums when an uninsured person that "lives" creates when he goes to an emergency room.. As of today, all of us who pay insurance carry that burden, after the bill, they will carry that burden too...

  10. Gravatar for Greg

    The first question is whether the mandate is valid under Commerce. No other federal law has ever attempted to order all Americans to go buy a product. Clearly, buying a product is commerce, but is a decision not to buy also commerce? If it is, then commerce includes all human action and inaction. The enumerated powers are rendered meaningless. I don't think the current high Court is going to go for that. If I'm just sitting at home and NOT buying a car and NOT buying insurance, I'm by definition NOT engaging in interstate commerce. There's nothing I'm doing that would justify the feds to order me to buy a car, insurance, or new curtains for the windows. In all other commerce clause cases, the individual or business was already engaging in interstate commerce even to a very remote degree. Surely just sitting at home is a non-activity that lies outside the bounds of the commerce clause. Further more, if I am ordered to buy a product, isn't that a taking under the 5th?

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