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Is Obamacare unconstitutional?


Harry Reid's bill is far from out of the woods.  (AP)

The health care bill has a few more hurdles to get over before becoming law, but even then may face challenges.  According to the Heritage Foundation, a very strong case can be made that the bill is unconstitutional, specifically when it requires an "individual mandate".

[T]he Supreme Court has never validated a federal power as intrusive as forcing all Americans to purchase a service due to their very existence.In fact, the Supreme Court has always been clear that the Commerce clause must have some limits...In United States v. Lopez (1995), the Court struck down the Gun-Free School Zones Act, which attempted to reach the activity of possessing a gun within a thousand feet of a school. In United States v. Morrison, it invalidated part of the Violence Against Women Act, which regulated gender-motivated violence. In both cases, the Court found the regulated activity in each case to be noneconomic; it was outside the reach of Congress’s Commerce power, regardless of its effect on interstate commerce.

In 1994, under the Clinton White House, the Congressional Budget Office agreed.  The CBO was dealing with so-called Hillarycare at the time and issued a report discussing the individual mandate

"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. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government."

If the Constitution allowed an individual mandate for insurance, simply because Congress believes that is what's best for us, then they could feasibly do anything.  As Heritage points out, "They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; require us to grow wheat (10 bushels each), or pay someone else to grow your share; require us to buy whatever they want."

If the bill passes, the question is not if, but when a Constitutional challenge lands before the Supreme Court.


  • Ken Grubb 5 years ago

    "The non-partisan Congressional Research Service prepared a report that suggests that an individual mandate could pass Supreme Court review under the power the Constitution's Article1 grants Congress to tax and spend."

  • 5 years ago

    I had never even considered that possibility; and I doubt few have. We're forced to pay taxes; forcing to purchase insurance seems a natural extension of tax powers, but incongruent with free enterprise and capitalism. Thanks for bring that to our attention.

    And now that Ken mentions it, using tax/spend under Article 1 is a really a long legal stretch; but in this over-liberal world, it could happen.

  • Embarrased 5 years ago

    ...that this hasn't been made a bigger deal of. I guess "progressives" only care about the constitution when Republicans are in office.

  • Ken Grubb 5 years ago

    Not to worry, Embarrased. There are plenty of Republicans and conservatives who don't much care about the General Welfare of the people whether they're in office or not.

  • Jarrett 5 years ago

    ...or they prefer to interpret "General Welfare" the way originally intended; not based on the whims of progressive leaders.