(CNSNews.com) – Representative Anthony Weiner (D-N.Y.) told CNSNews.com that the Constitution’s “welfare clause” grants Congress the authority to require that American citizens and legal residents buy health insurance policies. All of the health care bills currently before Congress include the purchase mandate.
Several Republican members of Congress have questioned whether the Constitution grants such authority and former Reagan Justice Department official David Rivkin Jr. has said that “none of Congress’ enumerated powers support an individual purchase mandate.”
When CNSNews.com asked Rep. Weiner where in the Constitution does Congress get the authority to mandate that individuals purchase health care, he said: “Under the welfare clause.”
House Majority Leader Steny Hoyer (D.-Md.) told CNSNews.com the same thing back in late October, “Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end,” Hoyer said. “The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.”
The section of the Constitution that both Weiner and Hoyer were referring to is Article I, Section 8, which outlines the powers of Congress, including raising taxes, but not the purchase of any type of product or service. The opening paragraph of Section 8 grants Congress the power to raise taxes to, among other things, “provide for the … general welfare of the United States.”
It reads: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
The Constitution then details the specific powers of Congress, including raising an Army and Navy, regulating commerce between states, and to “make all laws necessary and proper” for the carrying out of these enumerated powers.
In a video interview with CNSNews.com, Sen. Orrin Hatch (R-Utah), a long-time member of the Judiciary Committee, refuted the idea of using the “general welfare” clause to justify mandating the purchase of health insurance.
“Well, keep in mind the general welfare clause hasn’t been used for years, except through the Commerce Clause -- Article I, Section 8,” said Hatch. “And, frankly, the Commerce Clause affects, quote, ‘activities,’ unquote. And, you know, the government telling you, you have to buy health insurance, mandating that you have to buy health insurance, is not an activity. That’s telling you, you got to do something you don’t want to do.”
“Well, let’s put it this way,” Hatch said, “If that is held constitutional -- for them to be able to tell us we have to purchase health insurance -- then there is literally nothing that the federal government can’t force us to do. Nothing.”
CNSNews.com also asked Rep. Weiner, who supports the health insurance mandate, whether there is limit to what the “general welfare” can authorize Congress to require. He said, “The Supreme Court gets to decide that.”
According to a Congressional Research Service (CRS) and Sen. John McCain (R-Ariz.), the individual health insurance mandate could be constitutionally challenged.
“Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging questions 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, as detailed at FactCheck.org.
McCain, when asked about the constitutionality of the individual mandate, told CNSNews.com that he thinks “there would be a challenge” to it.
Back in 1994, when Democrats attempted to overhaul the health care system with a bill similar to those being reviewed by lawmakers today, the non-partisan Congressional Budget Office (CBO) stated: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. 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.”
A transcript of CNSNews.com’s exchange with Rep. Anthony Weiner (D-N.Y.) is as follows:
CNSNews.com: “I just wanted to know if you support mandating that individuals get health care under the health care bill?”
Congressman Weiner: “Yes.”
CNSNews.com: “Where in the Constitution does Congress get the authority to mandate that individuals purchase health care?”
Congressman Weiner: “Under, under, under the general welfare clause.”
CNSNews.com: “What’s the limit of that clause sir, if, if they’re requiring individuals to get health care, what’s the limit?”
Congressman Weiner: “The Supreme Court gets to decide that.”