Flashback: Senate Judiciary Chairman Unable to Explain Where Congress Gets Authority to Mandate Insurance

Matt Cover | June 27, 2012 | 6:24pm EDT
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(Editor's Note: This story was first published on October 22, 2009)

(CNSNews.com) - Senate Judiciary Chairman Patrick Leahy (D-Vt.) could not explain 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 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 –

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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, which provision –

Sen. Leahy: Where do we have the authority to set speed limits on an interstate highway? 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 The limit was repealed in 1995 and the authority to set speed limits reverted back to the states.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 Congress’ constitutional authority to dole out federal tax revenue.

The individual health insurance mandate contained in all five health overhaul bills currently being considered in Congress would levy a tax on any American adult who does not have one of three government-defined health insurance policies, purchased either through an employer or individually in government-run exchanges.

This is not the first time Congress has tried to force Americans to buy insurance. An individual mandate was a key component of then-President Bill Clinton’s government-led health care overhaul.

Of that Clinton-era mandate, the non-partisan Congressional Budget Office said that such a proposal 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.

CBO also noted that an individual mandate would carry with it something never before done in the history of America: it would impose a legal duty on American citizenship. In other words, all American citizens – and anyone wanting to become one – would be forced by the government to do something, even if they didn’t want to or chose not to.

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

"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."

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