White House Spokesman Gibbs Declines to Say Where Constitution Authorizes Government to Force Americans to Buy Health Insurance

By Fred Lucas | February 9, 2011 | 4:02 AM EST

White House Press Secretary Robert Gibbs speaks during his daily news briefing at the White House, Tuesday, Feb. 8, 2011, in Washington. (AP Photo/Carolyn Kaster)

Washington (CNSNews.com) – At Monday's White House press  briefing, White House Spokesman Robert Gibbs declined to answer a question about where the Constitution authorizes the federal government to force individual Americans to buy health insurance.

Two federal judges have recently ruled that the individual mandate in the health-care bill that President Barack Obama signed last March is an unconstitutional expansion of power.

On Monday, CNSNews.com asked Gibbs, “Does the administration believe that the penalty for not carrying insurance, is that considered a tax justified by the General Welfare clause or is it justified by the Commerce Clause?

Gibbs did not have an answer except to reference previous press briefings.

“I think we’ve covered this in many past briefings, and I'd point you to those answers,” Gibbs told CNSNews.com.

On at least two occasions, Gibbs identified the Commerce Clause of the U.S. Constitution as the grounds for the individual mandate being constitutional.

On March 22, 2010 – one day before President Barack Obama signed the Patient Protection and Affordable Care Act into law – a reporter asked Gibbs, “What has your Counsel’s Office said? Why do you have this confidence that – you say there’s established law, established precedent. On what, what is it? What is the established precedent?”

Gibbs answered, “On regulation of interstate commerce.”

The reporter followed, “But how is a mandate on an individual part of interstate -- I mean --”

Gibbs answered, “Well, that’s -- I think, again -- look, I’m not a lawyer, right.”

“And neither am I,” the reporter said.

Gibbs said, “Right, so we’re both in a pool where we can’t either see or touch the bottom. But as I understand the articles that I’ve read, the attorney general, for instance, of Virginia, is going to sue because he thinks this violates that. I think that for many decades, the Supreme Court has recognized Congress’s authority under the commerce clause to regulate activities relating to interstate commerce.”

On March 24, 2010, a day after Obama signed the landmark legislation into law, Gibbs again said the law can be justified by the Commerce Clause.

A reporter asked, “Robert, you’ve said with a great deal of confidence that you believe that the health reform act will be able to withstand these legal challenges – [Virginia Attorney General Ken] Cuccinelli, et cetera. What is – specifically, can you sort of give us an idea of what’s the basis of your confidence? Have you gotten anything from [U.S. Attorney General] Holder or the Counsel’s Office?

Gibbs responded, “Well, I think you’ve seen the statement that Justice put out yesterday. Obviously this – the argument of constitutionality was one that was brought up during the debate, but I think the counsel’s office here, the Department of Justice, and, quite frankly, legal experts throughout the country believe that the right – that the law does not – the law is not unconstitutional based on what these attorneys general are suing for. The notion that – we believe the president and the federal government does have the ability through the interstate commerce clause to ensure health care.”

CNSNews.com searched WhiteHouse.gov and Lexis-Nexis and found no instances where Gibbs cited the General Welfare Clause as a justification for the individual mandate.

During the legislative process, the Obama administration and Democrats in Congress argued that the penalty that came with non-compliance to the individual mandate was not a tax. However, during the court battles, the Obama administration has argued it is a tax, justified by the General Welfare Clause of the Constitution.

The court’s opinion in the Virginia case says, “The Secretary [of Health and Human Services Kathleen Sebelius] notes that "[i]ts penalty operates as an addition to an individual's income tax liability on his annual tax return, which is calculated by reference to income." (Def.'s Mem. Supp. 2.) The Secretary also cites projections that it will raise $4 billion annually in general revenue.”

The Virginia court ruling goes on to say the legislative intent never considered the General Welfare Clause.

“It is clear from the text of Section 1501 that the underlying regulatory scheme was conceived as an exercise of Commerce Clause powers. This is supported by specific factual findings purporting to demonstrate the effect of the health care scheme on interstate commerce. In order for the noncompliance penalty component to survive constitutional challenge, it must serve to effectuate a valid exercise of an enumerated power—here the Commerce Clause.”

Further, “the Court concluded that Congress lacked power under the Commerce Clause, or associated Necessary and Proper Clause, to compel an individual to involuntarily engage in a private commercial transaction,” the Virginia opinion said.

The separate Florida court ruling that involved 26 other states suing to have the law declared unconstitutional, the court also determined that justifying the matter under the Commerce Clause went too far.

“It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause,” the federal court in Florida ruled.

“If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting – as was done in the Act – that compelling the actual transaction is itself ‘commercial and economic in nature, and substantially affects interstate commerce’ [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted,” the court added.

Two other federal district courts, one in Michigan and a separate Virginia court, ruled that the individual mandate is constitutional. Gibbs points out that more than a dozen courts have refused to hear the case against the law.

A reporter asked Gibbs on Tuesday if the president would consider dropping the individual mandate.

“The president had to make a conscious decision how to insure that the legislation would prevent the problem that we’ve seen with free riders, in other words, people that think they aren’t going to ever get sick, then they get hit by a bus and go to the emergency room and then they charge us basically to pay for it,” Gibbs said.

“The protection that we will have under this law is that it’s derived from ensuring that it’s not just a certain segment of the population is covered, but that everybody has coverage. It is an important foundation in this law,” he continued in his response on Tuesday. “The president supports it. We’ve gone to court to maintain it. As the president has said, we will work with those who want to see improvements in this law regardless of party.