(Washington, D.C.) -- Sen. John McCain (R-Ariz.) predicted on Thursday that there will be a constitutional challenge to the provision in the health care bill under consideration in Congress that would require all Americans to buy health insurance. According to the Congressional Budget Office, the federal government has never before mandated that Americans purchase any good or service.
When asked by CNSNews.com on Thursday where in the Constitution is Congress given the authority to mandate that people buy health insurance, McCain said, “That is an excellent question and I’m sure that if they pass health care legislation, I think there would be a challenge.”
The mandate requiring individuals to buy health insurance is found in both House and Senate versions of the bill. These include the 2,000-plus-page version released by House Democrats on Oct. 29 and the bill passed by the Senate Finance Committee on Oct. 13 (with only one Republican voting in favor).
When House Speaker Nancy Pelosi (D-Calif.) was asked about the mandate and Congress’ constitutional authority, she questioned the seriousness of the inquiry.
On Oct. 22,
CNSNews.com asked Pelosi, “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”
She said,
“Are you serious? Are you serious?”
In early October, Sen. Orrin Hatch (R-Utah), who serves on the Judiciary Committee, attempted to offer an amendment to the health care bill then under review in the Senate Finance Committee that would have provided for expedited judicial review of the provision mandating that individuals buy insurance if the bill were to be enacted. However, Sen. Max Baucus (D-Mont), chairman of the committee, ruled that Hatch’s amendment was out of order.
In offering his amendment on Oct. 1, Hatch said: "If we have the power simply to order Americans to buy certain products, why did we need a Cash-for-Clunkers program or the upcoming program providing rebates for purchasing energy appliances? We could simply require Americans to buy certain cars, dishwashers or refrigerators."
In an interview with CNSNews.com, Hatch said that if Congress can force Americans to buy health insurance 'then there's literally nothing the federal government can't force us to do."
In 1994, when the Clinton administration made an effort to pass health care reform, the non-partisan Congressional Budget Office (CBO) studied the issue of the federal government mandating that individuals purchase health insurance and concluded that it would be an unprecedented act.
“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action,” stated the CBO. “The government has never required people to buy any good or service as a condition of lawful residence in the United States.”
“An individual mandate would have two features that, in combination, would make it unique,” said the CBO. “First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”
In addition, an October 2009 Congressional Research Service (CRS) report said that mandating individuals to buy health insurance may be "the most challenging question" posed by the health care reform proposal.
“Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service,” the CRS report states.
Nevertheless, Sen. Patrick Leahy (D-Vt.) told CNSNews.com on Oct. 22 that "nobody" questions that Congress has the authority to require that Americans buy health insurance.
A transcript of CNSNews.com's Nov. 5 exchange with Senator McCain follows:
CNSNews.com: "Senator, on the health care issue, where in the Constitution does Congress get the authority to mandate that individuals get healthcare?"
Senator McCain: "That is an excellent question, and I’m sure that if they pass health care legislation, I think there would be a challenge.”