The Constitution created a national government of limited, enumerated powers. Over the years the Supreme Court dismantled many of the original barriers to expansive government. Now the President and the left-wing legal establishment are lobbying the Court to ratify the unprecedented power grab known as Obamacare.
America’s health care system is a mess. However, there were better options than a federal takeover through the misnamed Patient Protection and Affordable Care Act. Which is why a majority of Americans continue to oppose the law and support its repeal.
Moreover, Obamacare exceeded the federal government’s authority. States have what is known as “police power,” which allows them to regulate widely—such as requiring residents to purchase auto insurance. However, the national government has no such authority. Congress may act only on an explicit grant of power under Article 1, Section 8.
No provision authorizes Washington to dictate that Americans purchase a private product like health insurance. If the federal government can do that, it can do anything—that is, act like a state with “police power.” Hence Washington could force Americans to buy General Motors autos, Lehman Brothers securities, or a new home to boost the economy. Or, to use the famous hypothetical, force Americans to eat broccoli to reduce health care costs. In more than two centuries Congress has never claimed to possess such authority.
Admittedly, the idea of constitutional limits is not fashionable in Washington. The regulation of “interstate commerce” has become the all-purpose justification for almost everything Congress does. Interstate commerce once really meant interstate commerce. Now it means anything that vaguely sort of indirectly affects interstate commerce. Indeed, defenders of Obamacare argued that Uncle Sam can regulate individuals who have not acted, but simply engaged in “mental activity” by choosing not to enter interstate commerce, as one district court judge put it. It is an extraordinary claim.
Members of Congress rarely ask whether they have authority to act. When Obamacare was passed, House Speaker Nancy Pelosi seemed shocked by the question, responding “are you kidding?” Majority Whip James Clyburn (D-SC) acknowledged that “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.” Rep. Phil Hare (D-Ill.) told constituents: “I don’t worry about the Constitution.”
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