FLASHBACK: Senate Judiciary Chairman Leahy on Obamacare Mandate: 'Nobody' Questions Our Authority

Matt Cover | December 13, 2010 | 4:02pm EST
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Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee (Photo courtesy of Leahy’s Web site)

Senate Judiciary Chairman Patrick Leahy (D-Vt.) would not say what part of the Constitution grants Congress the power to force every American to buy health insurance--as all of the health care overhaul bills currently do.
Leahy, whose committee is responsible for vetting Supreme Court nominees, was asked by CNSNews.com where in the Constitution Congress is specifically granted the authority to require that every American purchase health insurance. Leahy answered by saying that “nobody questions” Congress’ authority for such an action.

CNSNews.com: "Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?"

Sen. Leahy: "We have plenty of authority. Are you saying there is no authority?"

CNSNews.com: "I’m asking--"

Sen. Leahy: "Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that."

When CNSNews.com again attempted to ask which provision of the Constitution gives Congress the authority to force Americans to purchase health insurance, Leahy compared the mandate to the government’s ability to set speed limits on interstate highways--before turning and walking away.

CNSNews.com: "But where, I mean, which–"

Sen. Leahy: "Where do we have the authority to set speed limits on an interstate highway?

CNSNews.com: "The states do that."
Sen. Leahy: "No. The federal government does that on federal highways."

Prior to 1995, the federal government mandated a speed limit of 55 miles an hour on all four-lane highways. The limit was repealed in 1995 and the authority to set speed limits reverted back to the states.
Technically, the law that established the 55 mile-an-hour limit--the Emergency Highway Energy Conservation Act of 1974--withheld federal highway funds from states that did not comply with it. The law rested on the Commerce Clause, which give Congress the authority to regulate interstate commerce, and Congress’ authority to dole out federal tax revenue.  Someone who does not buy health insurance, critics have argued, is not by that ommission engaged in interstate commerce and thus there is no act of interstate commerce for Congress to regulate in this situation.

All versions of the health care bill currently being considered in Congress mandate that individuals buy heatlh insurance.  Americans who don't would be subject to a financial penalty.

Attorney David Rivkin Jr., who worked in the Justice Department under both Presidents Ronald Reagan and George H.W. Bush, said that Sen. Leahy's response about the constitutional authority to mandate the purchase of health insurance "is wrong."

"None of Congress' enumerated powers support an individual purchase mandate," said Rivkin. "We have made this case in considerable detail in our recent articles in The Washington Post and The Wall Street Journal. Indeed, the Congressional Research Service, an entity that is usually deferential to Congress' prerogatives and prone to take an expansive view of congressional powers, when asked by the Senate Finance Committee Chairman Max Baucus about the constitutionality of individual purchase mandates could only say that this is a 'novel question.'"

"This mandate can only be based upon a view that Congress can exercise general police powers, a view profoundly at odds with the Framers' vision of the federal government as one of limited and enumerated powers," he said. "If the federal government can mandate an individual insurance purchase mandate, it can also mandate an unlimited array of other mandates and prescriptions, including the mandate to buy health club memberships or even to purchase a given quantity of fruits and vegetables."

"This state of affairs would completely warp our constitutional fabric, vitiate any autonomous role for the states and eviscerate individual liberty," said Rivkin.  "It is profoundly un-American."

This is not the first time Congress has considered forcing Americans to buy health insurance. In 193-94, an individual mandate was a key component of then-President Bill Clinton’s health care reform proposal. 
The non-partisan Congressional Budget Office said in a 1994 report that for federal government to order Americans to buy health insurance would be “unprecedented,” adding that the government had “never required” Americans to purchase anything. “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action,” CBO found.

“The government has never required people to buy any good or service as a condition of lawful residence in the United States," said the CBO report.

"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."

Although Sen. Leahy said that "nobody" questions that Congress has the authority to force Americans to buy health insurance, Republican members of the Senate Finance Committee did question whether Congress had that authority when the health-care bill was being debated in their committee. Sen. Orrin Hatch (R.-Utah) tried to offer an amendment that would expedite judicial review of the bill were it enacted, but Senate Finance Chairman Max Baucus (D.-Mont.) ruled that Hatch's amendment was out of order.

In making his ruling, Sen. Baucus said the issue should not be considered by the Finance Committee because it came under the jurisdiction of the Judiciary Committee--the panel chaired by Sen. Leahy.

"If we have the power simply to order Americans to buy certain products, why did we need a Cash-for-Clunkers program or the upcoming program providing rebates for purchasing energy appliances?" Hatch asked on Oct. 1 when trying to offer his amendment in the committee. "We could simply require Americans to buy certain cars, dishwashers or refrigerators."

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