Constitutional Questions About Government Health Care

Senator Jack Reed (D-RI) was asked “Specifically where in the Constitution does Congress get its authority to mandate that individuals purchase health insurance?” He couldn’t cite a specific section, but noted that Congress has required individuals to do lots of things in the past.

As a practical matter, Senator Reed is right.

Originally, the Constitution created a federal government with a limited set of enumerated powers, and the Tenth Amendment says, “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.” Today, the Tenth Amendment is irrelevant and the idea of the federal government having a limited set of enumerated powers is laughable.

Where in the Constitution did Congress get its authority to force people into a compulsory retirement program, as Social Security does? The Supreme Court’s ruling that Social Security is constitutional would appear to close the door on any notion of enumerated powers, or to reserving powers to the states or the people.

But Senator Reed came up with an even better example when he said “it is not unusual that the Congress has required individuals to do things, like sign up for the draft.” This is a great example because the Thirteenth Amendment to the Constitution says, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” The draft pressed people into involuntary servitude despite the Constitution’s explicit prohibition.

It has already been established that Congress has gained the authority to pass legislation that violates explicit provisions in the Constitution, as Senator Reed notes, so it is not surprising that the Senator would find the Constitution sufficiently irrelevant to the health care issue that he would not have — or need to have — an answer to the question.

Randall G. Holcombe is a Senior Fellow at the Independent Institute, the DeVoe Moore Professor of Economics at Florida State University, and author of the Independent Institute book Liberty in Peril: Democracy and Power in American History.
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