COLUMN: Is Health Care plan constitutional?

No matter what your feelings are on Obamacare – love it, hate it or undecided – every man and woman in America should be praying the Supreme Court strikes it down.

Stay with me left-wingers, and let me explain.

I raise my voice with just about everyone else in America against the current state of health care. The system is broken, and something needs to change. While it isn’t my ideal solution, Obamacare isn’t a terrible plan as a whole. Whatever good things Obamacare might bring to the table, though, are irrelevant. Why? Because the plan is unambiguously unconstitutional.

The reason for this is because the new bill forces all Americans to purchase health insurance. For reasons I won’t go into, this mandate is the linchpin of the bill; without it, Obamacare cannot work. Exactly why this is unconstitutional takes some explaining.

The federal government has no assumed powers; it can only do what the constitution says it can. Nowhere in the constitution does it say Congress can force people to buy anything. In order to get around this, the creators of the bill have cited three clauses in the Constitution to justify the mandate.

This first justification is the commerce clause – also known as the elastic clause for its universal applicability. This clause gives Congress the power to regulate interstate commerce. The health care industry certainly falls under this category and congress therefore has the right to regulate it.

The issue, as one George-Mason law professor articulated, is that not buying health insurance isn’t commerce, but the lack thereof. Congress has the right to regulate our commercial activities, not abstinence from activities.

The lower courts correctly ruled that Obama’s plan “amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.”

Clearly, this is a dangerous door to open.

The second justification is the tax clause, which enables Congress to lay and collect taxes in order to provide for the common defense and general welfare. If Congress were to collect taxes to provide health care as it does with roads, this would be a valid justification. This, however, isn’t how the mandate works. The mandate requires everyone buy health insurance, and those who don’t pay a fine. Unfortunately, a fine isn’t a tax and therefore this justification is illegitimate.

The final justification for the mandate is the necessary and proper clause, which states that Congress can pass any law it deems necessary and proper to carry out all powers in the constitution. Health care reform is arguably necessary to provide for the general welfare, but is it proper?

The health care mandate doesn’t even approach proper. When the Supreme Court makes a ruling, its ruling becomes what is called case law. Case law is extremely powerful because all other decisions by lower courts must be based upon this ruling.

If Congress decides the health care mandate is proper, because of the commerce clause or any other reason, the ruling provides a constitutional basis for virtually any other similar mandate in the future.

If Congress decides everyone must buy a car or work 50 hours a week, they would have the legal basis to do so because such actions affect interstate commerce. The mandate isn’t proper because it grants Congress unlimited power, theoretically.

There is much more at stake in this ruling than health care. Upholding this bill establishes dangerous case law and sets a bad precedent for future rulings. We must change the system, but we must also do it in a manner that doesn’t butcher the Constitution. 

­­- Mike Burnham is a junior majoring in international relations and economics. Comments can be sent to him at mike.burnham@gmail.com.