(CNSNews.com) - Sen. Jeff Merkley (D.-Ore.) says that Congress derived the constitutional authority to make Americans purchase health insurance as part of its "very first enumerated power." He was referring to the language at the beginning of Article 1, Section 8 of the Constitution, which says: "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."
CNSNews.com asked Merkley: “Specifically where in the Constitution does Congress get its authority to mandate that individuals purchase health care?”
Merkley said: “The very first enumerated power gives the power to provide for the common defense and the general welfare. So it’s right on, right on the front end.”
Before CNSNews.com could ask a follow-up question, Merkley’s press secretary pulled him away, apparently to attend an event.
Both House and Senate versions of the health care reform legislation mandate that individuals purchase health insurance, an unprecedented form of federal regulation.
In 1994, when Congress was considering a universal health care plan proposed by then-President Clinton that included a mandate that all individuals purchase health insurance, the Congressional Budget Office studied the issue 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.”
In an analysis published this July, the CBO said that an attempt to justify a mandate that people buy health insurance by using the Commerce Clause—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.
In a recent interview with CNSNews.com, Sen. Orrin Hatch (R.-Utah), a longtime member of the Senate Judiciary Committee, said that it was “not constitutionally sound” for Congress to mandate that individuals buy health insurance.
“But here would be the first time where our [federal] government would demand that people buy something that they may or may not want,” said Hatch. “And, you know, if that’s the case, then we didn’t need a 'Cash for Clunkers,' all we had to do is have the federal government say you all got to buy new cars, no matter how tough it is on you. You know, they could require you to buy anything. And that isn’t America. That’s not freedom. That’s not constitutionally sound.”
Hatch said that if we let the federal government begin forcing us to buy things we may not want to buy without having a clear constitutional justification for doing so “we’ve lost our freedoms, and that means the federal government can do anything it wants to do to us.”
Below is a transcript of the exchange between Sen. Jeff Merkley (D.-Ore.) and CNSNews.com:
CNSNews.com: “Specifically, where in the Constitution does Congress get its authority to mandate that individuals purchase health care?”
Senator Merkley: “The very first enumerated power is power to provide for the common defense and the general welfare. So it’s right on, right on the front end.”
CNSNews.com: “Okay, if that’s the case--”
Press Secretary: “Thank you. I’m sorry, we have to get going. Thank you.”