FLASHBACK: Congressional Democrats Couldn’t Say Where Constitution Authorized Insurance Mandate

By Terence P. Jeffrey | January 31, 2011 | 4:37pm EST

Senate Judiciary Chairman Patrick Leahy, D-Vt. (AP Photo/Evan Vucci)

(CNSNews.com) - For the second time in six weeks a U.S. district judge has ruled that the health care law signed last year by President Barack Obama is unconstitutional because of its provision forcing individual Americans to buy health insurance.

Last month, U.S. District Judge Henry Hudson ruled in the U.S District Court in Richmond, Va., that the state of Virginia was correct in claiming that the federal government did not have constitutional authority to force individuals in Virginia to buy health insurance. Today, U.S. District Judge Roger Vinson, in the U.S. District Court in Pensacola, Fla., ruled in favor of Florida and 25 other states that also challenged the constitutionality of Obamacare.

These federal court decisions may have been foreshadowed during the congressional debate over Obamacare when leading congressional Democrats were unable to state for the record what specific constitutional provision gave Congress the power to force individuals to buy health insurance.

During the congressional debate over the health-care legislation, CNSNews.com repeatedly asked members of Congress to state the specific constitutional provision that authorized Congress to force individuals to buy health insurance. Multiple Democratic leaders--including Senate Judiciary Chairman Patrick Leahy (D-Vt.), then-House Speaker Nancy Pelosi, then-House Judiciary Chairman John Conyers (D.-Mich.)--failed to directly answer the question.

By contrast, Sen. Orrin Hatch of Utah, the senior Republican on the Senate Judiciary Committee, sharply questioned the constitutionality of the Obamacare insurance mandate and told CNSNews.com: “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. Nothing.”

Senate Judiciary Chairman Patrick Leahy’s told CNSNews.com that “nobody” questioned Congress’s authority to force people to buy health insurance.

“Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?" CNSNews.com reporter Matt Cover asked Leahy.
”We have plenty of authority. Are you saying there is no authority?" countered Leahy.
"I’m asking," said Cover.
"Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that," said Leahy.

(See video of congressional Democrats respond to CNSNews.com's question about where the Constitution authorizes Congress to force individuals to buy health insurance:)

Cover put the same question to then-House Speaker Nancy Pelosi. She responded with incredulity that a reporter would even ask her about the constitutionality of the insurance mandate.

Then-House Judiciary Chairman John Conyers said that Congress got the authority from the “good and welfare” clause of the Constitution---which does not exist.

“What part of the Constitution do you think gives Congress the authority to mandate individuals to purchase health insurance?” CNSNews.com reporter Nick Ballasy asked Conyers.
“Under several clauses, the good and welfare clause and a couple others,” said Conyers. “All the scholars, the constitutional scholars that I know--I’m chairman of the Judiciary committee, as you know--they all say that there’s nothing unconstitutional in this bill and if there were, I would have tried to correct it if I thought there were.”

(See video of then-House Judiciary Chairman John Conyers, D.-Mich., addressing the constitutionality of Obamacare here:)

Conyers’s fellow Illinoisan, Sen. Roland Burris, said that Congress got the authority to force people to buy health insurance in the part of the Constitution that authorized Congress, “To provide for the health, welfare and defense of the country.”

The word “health” does not appear in the Constitution.

“What area specifically of the Constitution would give Congress the power to mandate an individual to have health insurance?” CNSNews.com asked Burris.
“Well, that’s under certainly the laws of the--protect the health, welfare of the country. That’s under the Constitution,” said Burris. “We’re not even dealing with any constitutionality here. Should we move in that direction? What does the Constitution say? To provide for the health, welfare and the defense of the country.”

Sen. Bob Casey (D.-Pa.) conceded that he did not know if there was a specific provision in the Constitution that authorized Congress to force people to buy health insurance.

 “Well, I don’t know if there’s a specific constitutional provision,” said Casey.

Similarly, Sen. Daniel Akaka (D.-Hawaii) of Hawaii conceded that he did not think there was a particular provision in the Constitution that allowed Congress to force people to buy health insuranc.e

“Does the United States Constitution give the United States Congress the authority to mandate individuals to have health insurance, to carry health insurance?” CNSNews.com reporter Nick Ballasy asked Akaka.
“I’m not aware of that--let me put it that way,” said Akaka.
“Is there any specific area of the Constitution that would give Congress the authority to be able to mandate individuals to have to purchase health insurance?” asked Ballasy.
“Not in particular with health insurance. It’s not covered in that respect,” said Akaka.

Sen. Jack Reed (D.-R.I.) admitted that he would have to look up the section of the Constitution that authorized Congress to force people to buy health insurance but said he thought it was something like Congress making people register for the draft.

“Let me see. I would have to check the specific sections,” Reed told CNSNews.com. “So, I’ll have to get back to you on the specific section. But it is not unusual that the Congress has required individuals to do things, like sign up for the draft.”

Senators Bernard Sanders (I.-Vt.) and Sherrod Brown (D.-Ohio) would not cite a specific provision in the Constitution that empowered Congress to force individuals to buy health insurance but suggested that since Congress got away with forcing people into the Medicare system then Congress could force people to buy private health insurance.

“Where in the Constitution?” said Sanders. “Probably the same place that comes Medicare and Medicaid and the CHIP Program and the Veterans Administration, and the health care programs that we’ve been doing for many, many decades.”  

“The same part of the Constitution that allows us to have Medicare,” said Brown, without stating which part of the Constitution that is.  “When I hear people that think this is a constitutional issue, my first question to them is, ‘Do you want to repeal Medicare?’ And some people, politically, are so extreme in this country that they want to repeal Medicare, and I think they’re dead wrong.”

Sen. Claire McCaskill (D.-Mo.) also failed to cite a specific provision in the Constitution, but said that the federal Congress forcing all individuals to buy health insurance was like state governments forcing people to buy auto insurance if they choose to buy a car and drive.

“Specifically where in the Constitution does Congress get the authority to mandate that individuals buy health insurance?” CNSNews.com asked McCaskill.
“Well the--we have all kinds of places where the government has gotten involved with health care and mandating insurance,” she said. “In most states, the government mandates the buying of car insurance, and I can assure everyone that if anything in this bill is unconstitutional, the Supreme Court will weigh in.”

Sen. Ben Nelson conceded that he could not answer the question because he was not a constitutional scholar, and Sen. Mary Landrieu said she would leave the answer to a constitutional lawyer on the congressional staff.

 “Specifically, where in the Constitution does Congress get its authority to mandate that individuals purchase health insurance?” CNSNews.com asked Sen. Nelson.
“Well, you know, I don’t know that I’m a constitutional scholar. So, I, I’m not going to be able to answer that question,” said Nelson.

 “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.

Sen. Dianne Feinstein (D.-Calif.) said she thought that the power problem could be justified by the Commerce Clause—which gives Congress the power to regulate commerce with foreign nations, among the the several states and with Indian tribes—because this was the provision Congress had used in recent years to justify all sorts of things.

“Where in the Constitution does Congress get the authority for an individual health insurance mandate?” CNSNews.com asked Feinstein.
“Well, I would assume it would be in the Commerce Clause of the Constitution. That’s how Congress legislates all kinds of various programs,” said Feinstein.

Sen. Kent Conrad (D.-N.D.) gave an answer that was reminiscent of both Sen. Landrieu’s answer and Sen. Feinstein’s. He referred CNSnews.com to the Senate legal counsel for an answer, but thought it was probably the Commerce Clause.

”Could you specifically say where in the Constitution does Congress get the authority to mandate that individuals get health insurance?” CNSNews.com asked Conrad.

“No, but I’ll refer you to the legal counsel for the Senate and they’re the ones that lead there as the full legal basis for the individual mandate--and I assume it’s in the Commerce Clause,” said Conrad.

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