No, I’m not talking about the GOP.
It’s the Obama health care plan: is it even constitutional?
In the last several articles on this blog, we have discussed Amendments Three and Four, privacy, and forced vaccinations; the conflict between Obama’s czars and Article II appointment authority; and most recently, Article I, Section 8 regarding Congress’ enumerated powers.
In this series of articles, we have been asking whether any of the actions of Congress or the Executive have any authority in the Constitution. To be thorough we must ask the threshold constitutional question about health care.
Health care, by its nature, involves the most personal decisions between doctor and patient, many involving life and death. No ‘one size fits all’ program could ever exist because individuals’ past histories, body make-up and so many other factors are different.
Can the government interfere? My assessment is that it cannot based on the principles of the Constitution, and specifically Articles I, II, IV and Amendments Three, Four, and Ten.
The privacy right as it has evolved from Amendments Three and Four of the Constitution has exempted from government interference with the right to decisions about a woman’s body and others’ right to be protected against forced government intrusion of their physical space or person.
Under even the broadest interpretation of Article I, Section 8, Clause 18 (the ‘necessary and proper’ clause), there is nothing in the express or implied powers of Congress that allow such basic intrusion into the rights of individual Americans, their finances, privacy, or health decisions. It is the antithesis of the Constitution’s basic premise of unalienable individual liberties.
The line of reasoning for privacy started with the case of Griswold v. Connecticut, and later Supreme Court cases. As the David Rifkin and Lee Casey of the Wall Street Journal noted recently,
The court’s underlying rationale [in Griswold v. Connecticut and Roe v. Wade] was not abortion-specific. Rather, the justices posited a constitutionally mandated zone of personal privacy that must remain free of government regulation, except in the most exceptional circumstances. As the court explained in Planned Parenthood v. Casey (1992), “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”
Rifkin and Casey’s article is well worth the read.
Article I, Section 8, Clause 3, commonly known as the Commerce Clause, can also be read to invalidate many portions of the proposed health care bill on the basis that
…the “individual mandate” is unconstitutional“, because the government cannot force Americans to buy something they don’t want under the Commerce Clause of the U.S. Constitution.
But if the health care bill was fashioned to enhance cross-state competition and allow Americans access to that insurance, this could be a proper use of the Commerce Clause. Makes one wonder what the heck is at the center of ‘health care reform’ but socialized, single-payer health care?
Article II Appointments: Health Czars
Under Article II, Obama does not have the authority to appoint ‘health czars’ or boards. Neither does Congress, under Article I, have the authority to improperly delegate its responsibility to the President. In short Congress has not demonstrated the need or authority on a threshold constitutional basis to establish such a health care program or health czar positions, and neither can it delegate that authority to the President.
Article IV, Section 4.
Article IV, Section 4 of the U.S. Constitution guarantees to every state a Republican form of government:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. [emphasis added]
The State of New York successfully fended off a federal effort to take and care for federally-generated hazardous waste using this provision of Article IV and the Tenth Amendment.
In the case of health care, the government is mandating that the states implement a federal directive regarding the government’s effort to control individual health care choices of Americans. This could be viewed as ‘domestic violence’ against the states.
Americans are seeing the inter-generational theft of resources, decision-making, and liberties happening every day. American voices are reviving the Constitution as a document very much relevant for our times.
The point of highlighting these obvious violations of portions of the constitution is to illustrate ways in which every action of Obama and the Congress can be challenged on constitutional grounds, and through a court of law. Actions upon actions can forestall the implementation of this bill before it has a chance to seize hold. We still are a nation of laws and we can use every legal maneuver to stop this little wagon in its tracks.
Did Obama and Congress forget that the primary rule of health care is “First, do no Harm” ?
Fear is the foundation of most governments; but it is so sordid and brutal a passion, and renders men in whose breasts it predominates so stupid and miserable, that Americans will not be likely to approve of any political institution which is founded on it. ~John Adams, Thoughts on Government, 1776