October 23, 2009

Dems Shred The Constitution


Health Reform: House Majority Leader Steny Hoyer says it's constitutional to mandate insurance coverage. Congress, he insists, has "broad authority" to make us buy things to provide for the "general welfare."

Democrats' Alice In Wonderland interpretation of what they consider to be a "living Constitution," where words mean what they say they mean based on political considerations, gets more bizarre by the minute.

At his weekly press briefing Tuesday, Hoyer was asked, as we have asked, just where in the Constitution was Congress granted the power to force people to buy health insurance or force those who refuse to pay a penalty (or by its true description, a tax.)

Hoyer pointed to Article 1, Section 8, which gives the Congress the power to raise taxes in order to "provide for common Defence and general Welfare of the United States." Does that give Congress the authority to buy things like health insurance?

Human Events editor-at-large Terence P. Jeffrey makes the point that broccoli is good for our general welfare, but can Congress make us buy it and charge us if we don't? Losing a few pounds would help us all and reduce health care costs, but can Congress mandate health club memberships? Hoyer thinks so.

"Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress, broad authority to effect that end," Hoyer said. "The end we're trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility." Really.

We've been down this road before. In 1994, Hillary Clinton's secretive health care task force was trying to nationalize health care. "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action," the Congressional Budget Office concluded. "The government has never required people to buy any good or service as a condition of lawful residence in the United States."

Nor can it, according to constitutional lawyer David B. Rivkin. "Congressman Hoyer is wrong," he said. "The notion that the general welfare language is a basis for a specific legislative exercise is all silly because if that's true, because general welfare language is inherently limitless, then the federal government can do anything."

Perhaps Hoyer gets his advice from constitutional scholar Joe Biden who would surely tell him that under Article 1, Section 2 direct federal taxes on targeted individuals is unlawful. It says that "direct Taxes shall be apportioned among the several states .. . according to their numbers ... ." That's why its enactment required a constitutional amendment — the 16th

Finance Committee Chairman Max Baucus of Montana argues that this tax on the uninsured is really an "indirect" excise tax like the gasoline tax. Except that excise taxes are taxes on things that people purchase, not on the people themselves. It taxes what they do, not what they don't do.

When the Senate Finance Committee was drafting the Baucus bill, Sen. Orrin Hatch tried to make exactly this point. Hatch tried to submit an amendment asking for an expedited judicial review on this and other constitutional problems with proposed health care reform. Baucus ruled that was a matter for the Judiciary Committee and Finance couldn't touch it.

"Even if the Supreme Court has expanded the commerce power, there has been one constant," Hatch noted. "Congress was always regulating activities in which people chose to engage." He added that "rather than regulate what people have chosen to do, it would require them to do something they have not chosen to do at all."

Rivkin and Lee A. Casey, who served in the Justice Department under Presidents Reagan and George H.W. Bush, wrote in the Washington Post that in United States vs. Lopez in 1995, the U.S. Supreme Court ruled that Congress can only regulate human activity that is truly commercial at its core. One does not go to a doctor to engage in commercial activity.

Hoyer sees no problem with his interpretation. So just be quiet and eat your broccoli.

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