Sen. Hutchison: ‘No Place in Constitution’ Gives Congress Authority to Mandate Health Insurance – Is Trampling on Individual Rights

December 28, 2009 - 4:01 PM
The health care bill just passed by the Senate is a "trampling of individual rights," Sen. Kay Bailey Hutchison (R-Texas) told CNSNews.com.

U.S. Senator Kay Bailey Hutchinson (R-Tex.)

(CNSNews.com) – Sen. Kay Bailey Hutchison (R-Texas) said there is “no place in the Constitution” that grants Congress the authority to require that Americans purchase health insurance, as both the Senate and House health care bills do. She added that the health care bill recently passed by the Senate is a “trampling of individual rights.”
 
At the U.S. Capitol on Wednesday, Dec. 23, CNSNews.com asked Sen. Hutchison (R-Tex.), “Where in the Constitution do you think Congress is finding the authority to mandate that someone purchase health insurance?”
 
Senator Hutchison said:  “There is no place in the Constitution that allows this trampling of individual rights, and I am going to make a point of order that it tramples on the 10th Amendment as well, the rights of states to regulate insurance. And, in my state, we have a self-insurance plan for state employees and teachers, and the federal government now has the right to intrude on that – and it’s not in the Constitution either.”
 

 
The Senate bill, the Patient Protection and Affordable Care Act, was passed early on Dec. 24, Christmas Eve, on a strict party-line vote of 60 to 39. (One Republican skipped the vote and the two Independents, Bernie Sanders of Vermont and Joe Lieberman of Connecticut joined with the 58 Democrats to pass the measure.)
 
The legislation 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.
 
Speaking on the floor, Hutchison took issue with the argument Democrats have made that the mandate is permissible under the Commerce Clause, in Article 1, Section 8 of the Constitution.
 
“I want to talk about another area that I think is a stretch in this bill and that is that apparently the individual mandate is being justified by the Commerce clause of our Constitution,” she said.
 
The Commerce Clause gives Congress the authority “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”
 
Hutchison continued, “Now, the Commerce clause basically says that no state may impede interstate commerce. You may say, out in America, ‘Uh, I don’t see the connection. I’m going to be mandated to buy health insurance or be fined if I don’t, because states can’t impede interstate commerce?’”
 
“Well, I would agree with people out there that that seems like a disconnect,” Hutchison said.
 
The Republican Steering Committee also believes the provision requiring people to buy insurance or face a fine is outside the purview of Congress and launched a constitutional challenge led by Sens. Jim DeMint (R-S.C.) and John Ensign (R-Nev.) last week. The pair of senators called a “point of order” to force Democrats to vote on whether they believed the mandate was Constitutional.
 
“Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” DeMint said on the floor.
 
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 (CBO)  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.”
 
At 3 p.m. on Wednesday, however, Democrats defeated the point of order and pressed on with a number of other procedural votes required before final passage of the bill on Thursday morning.
 
Before stepping onto the floor, Hutchison told CNSNews.com that she would point out why the individual mandate to carry health insurance also contradicts the 10th Amendment of the Constitution. She told CNSNews.com, “[A]nd I am going to make a point of order that it tramples on the 10th Amendment as well, the rights of states to regulate insurance. And, in my state, we have a self-insurance plan for state employees and teachers, and the federal government now has the right to intrude on that – and it’s not in the Constitution either.”
 
The 10th Amendment reserves those powers not expressly given to branches of the federal government to the individual states. It says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
 
The Senate legislation will have to be merged with the health care reform bill that passed narrowly in the House of Representatives in November, the Affordable Health Care for America Act. The resulting compromise between the two bodies, called the “conference report,” then must be passed by vote in both chambers of Congress before President Barack Obama could sign it into law.

Opposition to the bill has become a rallying call for Republicans as public support for it has foundered below 40 percent in national polls recently.
 
A transcript of the exchange between Sen. Hutchison (R-Tex.) and CNSNews.com follows below:
 
CNSNews.com: “Where in the Constitution do you think Congress is finding the authority to mandate that someone purchase health insurance?”
 
Senator Hutchison:  “There is no place in the Constitution that allows this trampling of individual rights, and I am going to make a point of order that it tramples on the 10th Amendment as well, the rights of states to regulate insurance. And, in my state, we have a self-insurance plan for state employees and teachers, and the federal government now has the right to intrude on that – and it’s not in the Constitution either.”