Sen. Lincoln: Congress Can Force Americans to Buy Health Insurance Because Constitution ‘Charges Congress With the Health’ of the People
The words “health” and “well-being” do not appear anywhere in the Constitution.
The Congressional Budget Office has determined that in the entire history of the United States the federal government has never mandated that Americans buy any good or service. Both the House and Senate health care bills, however, include provisions that require all legal residents of the U.S. to purchase health insurance, a provision whose constitutionality has been qiuestioned by, among others, Sen. Orrin Hatch (R.-Utah), the former chairman of the Senate Judiciary Committee.
At a press conference on Capitol Hill, CNSNews.com asked Sens. Mary Landrieu (D-La.) and Blanche Lincoln the following question: “What part of the Constitution do you think gives Congress the authority to mandate that individuals have to purchase health insurance?”
Lincoln did not answer the question during the press conference but spoke to CNSNews.com in the Dirksen Senate Office Building immediately afterward. CNSNews.com asked her there: ‘You didn’t respond to my constitutionality question during the press conference, and what was your reaction to, your answer to the question?”
“Well, I just think the Constitution charges Congress with the health and well-being of the people,” Lincoln said.
CNSNews.com then asked the Senator: “So, what area though? You’re saying the health and well-being. What area, though, does that fall under?”
“The health and well-being of the people of the country,” she replied.
During the press conference, Landrieu told CNSNews.com she would let “constitutional lawyers on our staff” answer the question of where the Constitution authorizes Congress to mandate that individuals buy health insurance. “Well, we’re very lucky as members of the Senate to have constitutional lawyers on our staff, so I’ll let them answer that,” said Landrieu.
“But what I will say is that most certainly it is within Congress’ jurisdiction to come up with a way to have a health insurance funded with shared responsibility, is the way I like to, you know--government has a responsibility, individuals have a responsibility and business has a responsibility,” said Landrieu.
In 1994, when Congress was considering then-President Clinton’s proposal for universal health care, the CBO studied the issue of an individual mandate to purchase health insurance and discovered that the federal government had never in the history of the United States mandated that individuals purchase any good or service.
“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action,” said the CBO. “The government has never required people to buy any good or service as a condition of lawful residence in the United States.”
This July, the CBO said that an attempt to justify a mandate that people buy health insurance by using the Commerce Clause of the Constitution—which gives Congress the power to regulate commerce “among the several states”—raises a “novel issue.”
“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 a service,” said the CBO.
Sen. Hatch offered an amendment to the health care bill while it was under consideration in the Senate Finance Committee that would have expedited judicial review of the provision that mandates individuals buy health insurance. Finance Chairman Max Baucus (D.-Mont.) ruled that the amendment was not the proper jurisdiction of the committee and did not allow a direct vote on it. Hatch later told CNSNews.com that he believes the provision is unconstitutional.
“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,” said Hatch. “Nothing.”
As a followup to the interview in the Dirkson Building, CNSNews.com asked Sen. Lincoln’s press secretary specifically which Article and Section of the Constitution the senator was referring to when she said the Constitution charged Congress with the health and well-being of the people. The press secretary did not respond by deadline.
The words “health” and “well-being” do not appear anywhere in the Constitution. The closest approximations to these words come in the Preamble, which includes the phrase “promote the general welfare,” and Article 1, Section 8, which includes the phrase “provide for the common Defence and General Welfare.” As per the CBO's historical analysis, neither of these phrases has ever been used to justify Congress forcing individual Americans to purchase something.