Sen. Hatch: Authority for Congress to Mandate Health Insurance ‘Isn’t There’ in the Constitution

December 29, 2009 - 5:19 PM
Sen. Orrin Hatch (R-Utah) said there is nothing in the U.S. Constitution that gives Congress the power to compel individuals to buy health insurance.

Sen. Orrin Hatch (R.-Utah) (Congressional photo)

Washington (CNSNews.com) – Sen. Orrin Hatch (R-Utah) said there is nothing in the U.S. Constitution that gives Congress the power to compel individuals to buy health insurance.
 
“It isn’t there. It isn’t there,” Hatch said last week at the U.S. Capitol, when CNSNews.com asked where in the Constitution Congress finds authority to create an individual mandate to purchase health insurance.
 
CNSNews.com talked to Hatch, a longtime member of the Senate Judiciary Committee, while he was on his way to take part in a series of procedural votes on the Senate’s health-care reform bill last Wednesday that  paved the way for its eventual passage. The votes included a constitutional “point of order” that Republicans raised, challenging the constitutionality of an individual mandate.
 
The Senate bill, the Patient Protection and Affordable Care Act, contains a historic provision that requires every American to purchase health insurance either individually or through their employer. If they do not, they can be penalized with a surtax ranging from $500 to nearly $1,500 per year.
 
Sens. John Ensign (R-Nev.) and Jim DeMint (R-S.C.) raised the point of order, essentially forcing Democrats to vote on whether they believed an individual mandate was constitutionally defensible before they could pass their health care bill.
 
“I am incredibly concerned that the Democrats’ proposed individual mandate provision takes away too much freedom and choice from Americans across the country,” Ensign argued on the Senate floor.  “As an American, I felt the obligation to stand up for the individual freedom of every citizen to make their own decision on this issue. I don’t believe Congress has the legal authority to force this mandate on its citizens.”
 
DeMint, as well, said the provision was outside the constitutional purview of Congress.
 
“Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” the South Carolina senator pointed out.
 

 
Hatch, meanwhile, told CNSNews.com there is only one place in the Constitution where the authority could possibly come.
 
“The only place they could have found it is Article I, Section 8. That’s the only place they could’ve found it, and it’s not there,” Hatch said.
 
Article I, Section 8 of the U.S. Constitution enumerates the limited powers of Congress and is the place in the document where some congressional Democratic leaders have pointed to defend the individual mandate. The “Commerce Clause” of Section 8 gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

Last October, House Speaker Nancy Pelosi (D-Calif.) dismissed the constitutionality question when CNSNews.com raised it at a briefing in October, saying, “Are you serious? Are you serious?”
 
But her press secretary then responded to follow-ups by sending a press release touting the Commerce Clause as giving Congress “essentially unlimited” power to regulate health care.
 
The document, titled Constitutionality of Health Insurance Reform,” says that “the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the health care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.”
 
But Hatch, however, told CNSNews.com in an interview last month, that such a broad interpretation of the Commerce Clause was invalid.
 
“The Commerce Clause effects, quote ‘activities,’ unquote, and the government telling you that you have to buy health insurance, mandating that you have to buy health insurance, is not an activity. I mean, that’s telling you that you’ve got to do something you don’t want to do,” Hatch said.
 
This would be “the first time that our government would demand that people buy something that they may or may not want,” Hatch said.
 
Indeed, in 1994, when the Clinton administration tried to pass its own health-care reform legislation, also with an individual mandate included, the Congressional Budget Office reported that it was “unprecedented” in legislative history. 

“The government has never required people to buy any good or service as a condition of lawful residence in the United States,” the CBO analysis said. “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.”

While the Clinton-era push for a health-care reform bill ultimately failed, last week Senate Democrats used their 20 vote majority to unanimously reject the point of order on the current bill before voting to end debate on the measure. The Senate subsequently passed the health-care bill on a 60-39 vote early Christmas Eve.

A conference committee, however, must now be appointed to try to fashion a compromise between the radically different versions passed by the House and Senate.