Greg Krehbiel
Is health care reform constitutional? Does it matter?
by Greg Krehbiel on 29 October 2009
Yesterday I read an interesting article in The Washington Times about debates over the constitutionality of health care reform — specifically, whether the federal government can require people to purchase health care insurance. (Not whether it should, but whether it has the constitutional authority.)
Today I did a search on The Washington Post for the same topic, and found this: Illegal Health Reform, which argues that the mandate is unconstitutional.
What I find particularly bothersome is the quote from my Congressman in the WT article that the constitutional authority for the health care mandate can be justified from the phrase “promote the general welfare” in the preamble.
That kind of reasoning makes a mockery of the constitution and of the concept of limited government, because that phrase could be used to justify anything — or to outlaw anything.
2009-10-29 » Greg Krehbiel
29 October 2009 @ 11:19 am
From what I understand, the Preamble of the constitution, the part that contains that phrase is only a statement of purpose of the rest of the constitution. It has no provisions for structure or function of the Federal Government.
It’s pretty clear to anyone who can read:
…IN ORDER TO… promote the general Welfare…do ordain and establish this Constitution…
The Constitution that follows that preamble is supposed to do all of those things through it’s provisions.
You’re right, people use that phrase to justify anything.
There’s so much that we accept these days that is un-constitutional, that it seems silly to argue it anymore. Social Security and The Department of Education come to mind immediately.
One of my disappointments with Ronald Reagan is that he didn’t abolish the Department of Education as he’d promised to do.
29 October 2009 @ 11:26 am
I thought Pelosi’s response was funny when somebody asked her if it’s constitutional.
“Are you kidding?”
Almost as if she thinks, “What, do you think our grand scheme should be limited by such trivial things?”
29 October 2009 @ 11:39 am
Have you heard the audio of Pelosi? She’s like completely flabbergasted that anyone would ask such a thing.
29 October 2009 @ 11:47 am
No, do you have a link?
I’m sure it’s very annoying. Here she is, out to save the world and make everything wonderful, and some Neanderthal asks about authority and laws and old pieces of paper.
29 October 2009 @ 12:03 pm
I don’t have a link, I heard it on Glenn Beck’s radio show yesterday.
Whew! Glad I’m posting anonymously. If anyone knew I listen to Glenn Beck…
29 October 2009 @ 12:07 pm
Just so you know — you’re anonymous on the web, but every time somebody posts I get a notification that includes your email address. So I know who it is.
29 October 2009 @ 12:42 pm
Anyone who thinks that the preamble is intended to give warrant to specific actions must think the Founders were on drugs.
So, they go to all this bother laying out this constitution that gives very specific details on how things should and shouldn’t be done, but they include a sentence that taken at face value, authorizes anything that anybody might believe might be a good idea?
Of course, the real problem is my first three words, “anyone who thinks.” But it’s still irritating that the argument is even made.
29 October 2009 @ 12:46 pm
I take Pelosi’s response as, “Are you kidding? We’re not talking about restricting abortion or limiting the amount of time a woman has to file a harassment complaint, so how could it be unconstitutional?” To a garden-variety American liberal democrat, “unconstitutional” only means a few specific things, it doesn’t mean “against the constitution.”
29 October 2009 @ 1:08 pm
P — I think you’re right. The liberal response to the constitution is generally “am I forbidden from doing this,” and Pelosi thinks nothing forbids it, so they can do it.
The conservative interpretation of the constitution is, “Here are your delegated powers, don’t step outside them.”
29 October 2009 @ 1:47 pm
Greg,
I know you know who I am and I don’t really care. You could also figure it out from server logs and backtracking the IP address.
I’m just trying to avoid being associated with these views, or Glenn Beck =8-O, by automated queries for the enemies lists they are building.
A trivial analysis of the my writing quirks with all of it’s idiosyncrasies, would lead you to who I am.
31 October 2009 @ 6:37 pm
Ah well then it must be true
The general welfare bit is not from the preamble. Of course I had to look really really hard (two clicks on Google) to find that out.
OTOH, to be fair, it is in a section that seems to apply to raising revenue. It’s kind of weird, though, to say that the government can raise revenue to do something that it doesn’t have the power to do.
31 October 2009 @ 7:11 pm
Yes, I think the audio I heard of Pelosi answering that question they played on the Glenn Beck show really was her.
WTF? You must have clicked one time too many. That very link you give says it IS from the preamble. It’s also says it’s found in the tax and spending clause. The article also says it’s generally taken as a limitation on Government Tax and Spending authority.
31 October 2009 @ 7:46 pm
I guess I should have said “the relevant general welfare bit,” but I also found that very obvious.
31 October 2009 @ 10:39 pm
The second “general welfare” clause has to do with taxing and spending, not with the ability to make any laws on anything they like, so I think it is the first clause that is the “relevant” one in the context we’re talking about.
1 November 2009 @ 8:16 am
Greg,
Actually, it appears that it’s not at all clear that “general welfare” was intended by at least some of the founders to be an open ended license for the Federal Government to support whatever they deem beneficial. There’s an interesting article here about it.
Hamilton, one of the two principal authors of The Federalist Papers took the view that things like Education could be supported under this clause.
I feel lied to by all those “originalists” down through the years who claimed that the founders intended very limited government. They always pointed to The Federalist Papers for support. Guess I should have actually read The Federalist Papers rather than just take their word for it.
One thing about The Tax and Spending Clause, it does appear to rule out “Redistributive Justice” so appears to be in favor with the Administration today.
1 November 2009 @ 9:18 am
As I said, it really doesn’t make much sense to say that the government can raise revenue and spend that revenue on something it doesn’t have the power to do.
Saying that the “general welfare” clause people are talking about is in the preamble seems to me to be similar to anti-religious arguments you have criticized where an apparent contradiction in the Bible or a theological argument is so obviously stupid that no serious person would have made it in the first place. The preamble is clearly an introductory flourish, and claiming that someone is basing a serious constitutional argument on language in the preamble is a strawman argument.
1 November 2009 @ 10:03 am
It may be that they’re referring to the tax “general welfare clause” rather than the one in the preamble, but that doesn’t change the underlying issue, which is that if there isn’t a clearly enumerated power in the constitution, trying to justify it by a “general welfare” clause (whichever you pick) is silly and turns the constitution completely on its head.
1 November 2009 @ 1:47 pm
You talking to me or Greg here? I don’t recall being involved in this kind of argument.
If you are talking to me, you might be confusing me with a different Anonymous.