Is Health Care Reform Constitutional?

Federal Powers: Where in the U.S. Constitution does it say the government can force people to buy health insurance? And by what authority does it prohibit the purchasing of insurance across state lines?

A key part of the administration's plan to reform health care is what is called the "individual mandate" -- a requirement that everyone must have health insurance either through his or her employer or purchased individually.

A good chunk of the uninsured are that way of their own volition. They are young and healthy and feel they have better things to do with their money at this point in their lives. Forcing them is the only way to get them covered, but it's not clear where the constitutional authority to do that comes from.

The Constitution specifically enumerates the powers given to each branch of government and says that any powers not mentioned revert to the states and to the people. Nowhere does it say that the feds can compel you to buy health insurance. But then, this is the administration that claims the right to a de facto nationalization of the banking system and auto industry, to set executive compensation and to fire corporate officers.

With regard to health care reform, the administration seems to be operating under a distorted version of the Commerce Clause that has been grossly misinterpreted over the years as allowing the feds to regulate and control just about everything. Because the sum total of millions of individual health decisions has a collective economic impact, the reasoning goes, government has the authority, even the duty, to regulate those decisions. It does not.

Former New Jersey Superior Court Judge Andrew Napolitano, a constitutional scholar now a Fox News analyst, says the power to "regulate" interstate commerce is just that and only that. He says that when James Madison used the word "regulate," he meant "to keep regular." Madison intended the government to function like a modern-day referee in football -- to throw a flag once in a while and moderate disputes, but not call the plays.

The irony here, says Napolitano, is that at the same time the government wants to force people to buy insurance, it forbids them from doing so across state lines. In other words, he says, "Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person's appendix because that constitutes interstate commerce."

David B. Rivkin Jr. and Lee A. Casey, who served in the Justice Department under both Presidents Ronald 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.

The Commerce Clause allows for the regulation of economic activity across state lines that involves the production, distribution or consumption of commodities. The Supreme Court has specifically rejected the idea that Congress can regulate noneconomic activities simply because through a chain of collective events they might have some impact down the road.

The government does not have the power to regulate individual Americans simply because they are there and you think their individual decisions are unwise. There are other concerns, such as whether the mass collection of medical records violates the Fourth Amendment's right of people "to be secure in their persons, houses, papers and effects."

The states are starting to rebel. In July, Texas Gov. Rick Perry indicated that he might join those invoking the 10 th Amendment to fight a federal takeover of health care. "I think you'll hear states and and governors standing up and saying "no' to this type of encroachment on the states with their health care," Perry said.

If passed into law, the House's health care reform plan will be tested. We hope the Supreme Court will once again find that H.R. 3200, and any bill like it that imposes similar mandates, violates the Constitution.