I grew up learning about the Constitution. In fact, as unique as I now realize this was, my family’s dinner discussions often centered on the Constitution. Because of this, from an early age, I gained a deep appreciation for the wisdom of the Framers and the genius of our republic’s founding document. I learned of how the Framers, through their own experience with a distant, tyrannical government in London, recognized the critical importance of limited government. The Framers knew that British tyranny was not an accident of history—that England was not the only government capable of oppression. Rather, as students of human nature, they recognized the reality that a government of men, left unchecked, would naturally tend toward tyranny.
Accordingly, the constitution the Framers fashioned to structure the new American government did not begin with a presumption that the national government possesses all power—that it was authorized to enact any legislation it could dream up and enact. Rather, the Constitution properly begins with the opposite presumption—that the federal government is not authorized to exercise any power except that which the Constitution expressly grants it. Accordingly, before Congress enacts a piece of legislation, it must deliberately and conscientiously determine whether the proposed exercise of federal government power is authorized and, if so, which specific provision of the Constitution grants that authority.
In the case of ObamaCare, however, it is plain that President Obama and the Democrat Congress did not, as they should have, begin the process by determining what the Constitution did and did not authorize them to do. Rather, they determined first what they wanted to do—regardless of how intrusive that action might be—and have since been in search of a potential constitutional justification to hide their unauthorized power grab.
This post-hoc search for a basis on which ObamaCare might be considered constitutional is hopeless and futile. In fact, attempts to justify ObamaCare only highlight how far beyond our founding document President Obama and the Democrat Congress went in enacting that law. Central to Obamacare, and fatal to its claim of constitutionality, is its unprecedented mandate that every individual in the United States must purchase and maintain health insurance at all times. Nowhere does the Constitution countenance the novel and remarkable theory that the federal government is allowed to tell everyone in the country what they must purchase. Tellingly, ObamaCare marks the first time in our country’s constitutional history that the federal government has asserted such an extraordinary power.
None of this, however, has prevented Democrats from attempting to justify ObamaCare’s individual mandate by expanding, twisting, and contorting provisions of the Constitution to their liking. For example, proponents of ObamaCare primarily rely on the Commerce Clause, which authorizes Congress to regulate commerce “among the several states.” This is a narrow grant of authority, directed specifically to commerce and delimited to the subset of such activity that occurs in interstate transactions. No reasonable construction of the text of the Commerce Clause can lead to the conclusion that the Constitution authorizes Congress to regulate any and all affairs of human life throughout our nation, let alone personal decisions such as whether or not to purchase health insurance.
For the Commerce Clause to authorize ObamaCare, it would have to be changed to allow the government to regulate all commerce (not just interstate commerce); it would also have to be changed so as to authorize the government not only to regulate commerce, but also to compel individuals to enter into that commerce in the first instance. The proper process for enacting such a change to the Constitution is through the amendment process. Absent such a constitutional amendment, the Commerce Clause cannot be used to justify the enactment of ObamaCare without doing great violence to the text, tradition, and purpose of the Constitution.
No doubt cognizant that the text of the Commerce Clause does not authorize ObamaCare’s individual mandate, proponents of that law have looked to other provisions of the Constitution, including the Taxing and Spending Clause, and Necessary and Proper Clause. But these desperate attempts to mold constitutional provisions into something that can legitimize ObamaCare likewise fail to honor the text, purpose, and original meaning of the Constitution.
The Constitutional authorizes the government “[t]o lay and collect Taxes, Duties, Imposes and Excises.” But ObamaCare’s individual mandate is not a tax, and the distinction matters. Voters don’t like taxes and there is good reason to think that Congress could not have passed the law had the individual mandate been structured and labeled as a tax.
The Constitution also grants Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” other federal powers. But there is no constitutional aspect of ObamaCare that the individual mandate carries into effect, and Congress may not use an unconstitutional law to carry into execution an unconstitutional law. If ObamaCare were considered constitutional under the Necessary and Proper Clause because Congress needs exceptional powers to carry into effect coercive government laws never authorized by the Constitution in the first place, then there is literally no limit to the federal government’s powers.
The arguments made by proponents of ObamaCare thus turn the Constitution on its head and would create a federal government of unlimited power where the Constitution authorizes a federal government of limited, enumerated powers. Because none of the federal government’s enumerated powers authorizes the kind of government coercion imposed by ObamaCare, that law must be considered unconstitutional.Op-ed originally published in Roll Call