Sebelius: Congress 'Carefully Weighed Its Authority' on Obamacare--Even Though Members Couldn't Say Where Constitution Authorized It

By Matt Cover | March 12, 2012 | 6:07pm EDT

Health and Human Services Secretary Kathleen Sebelius. ( Starr)

( – In a commentary published Sunday in Politico, Health and Human Services Secretary (HHS) Kathleen Sebelius defended Obamacare’s individual mandate that says people must buy health insurance, stating, “Congress carefully weighed its authority in writing the law.”

However, as reported at the time, many U.S. lawmakers were unable to answer the simple question, "Where specifically in the Constitution does Congress get its authority to mandate that individuals purchase health insurance?”

“When the U.S. Supreme Court takes up the Affordable Care Act (ACA) later this month, it will not be the first to consider its constitutionality,” Sebelius wrote. “Congress carefully weighed its authority in writing the law.”

Yet, in a series of stories written when Congress was considering the ACA in 2009 and 2010--the legislation became law in March asked many members of Congress, including top members of the congressional leadership, where, specifically, the Constitution authorized Congress to compel Americans to buy health insurance.

Few members of Congress could or would state with certainty which specific provision in the Constitution gave Congress the authority to order individuals to buy health insurance. Some pointed broadly to the "general welfare" clause, which under the same reasoning could justify the federal government doing almost anything.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), in October 2009,  compared the mandate to Congress’ setting of speed limits on interstate highways saying, “I mean, there’s no question there’s authority. Nobody questions that. Where do we have the authority to set speed limits on an interstate highway?”

That same month, then-Speaker Nancy Pelosi (D-Calif.) famously asked, “Are you serious?” when asked where the Constitution authorized Congress to make people  buy health insurance. Later, a spokesperson claimed that the mandate was authorized by the Commerce Clause.

Then-House Majority Leader Steny Hoyer (D-Md.) said in October 2009 that the individual mandate rested on the General Welfare clause.

“Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end,” Hoyer said. “The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.”

Hoyer also compared a health insurance mandate to the government’s power to levy taxes, saying, “We mandate other things as well, like paying taxes.”

Then-Chairman of the House Judiciary Committee John Conyers (D-Mich.) cited the non-existent “good-and-welfare clause” of the Constitution when asked where the mandate came from.

“Under several clauses, the good and welfare clause and a couple others,” Conyers said on Mar. 22, 2010.

Senator Jeff Merkley (D-Ore.) said that the mandate was founded on Congress’ “very first enumerated power,” – the power to tax.

“The very first enumerated power gives the power to provide for the common defense and the general welfare. So it’s right on, right on the front end,” Merkley said.

Senator Daniel Akaka (D-Hawaii) said that he was “not aware” of where the mandate’s authority even came from.

“I’m not aware of that, let me put it that way,” Sen. Akaka said in November 2009.

When asked again, Sen. Akaka said that the individual mandate was not covered by the Constitution “in particular” but defended it anyway on the grounds that Congress was trying to help people.

“Not in particular with health insurance. It’s not covered in that respect,” he said.  “But in ways to help citizens in our country to live a good life, let me say it that way, is what we’re trying to do, and in this case, we’re trying to help them with their health.”

Several lawmakers could not come up with any part of the Constitution that justified the mandate.

Senator Ben Nelson (D-Neb.) said that because he was not a constitutional scholar, he did not know where the mandate was authorized.

“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,” Nelson said in November 2009.

Senator Kent Conrad (D-N.D.) also said he did not know, referring to Senate lawyers before guessing it was the Commerce Clause.

“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.

One lawmaker, Democratic National Committee Chairwoman Rep. Debbie Wasserman-Schultz (D-Fla.), even tried to claim that the mandate did not exist at all. At an April 5, 2010 town hall meeting, Wasserman-Schultz told constituents that the mandate did not exist.

“We actually have not required in this law that you carry health insurance,” Wasserman Schultz said. “What we’re doing is that you will be in a different tax status if you carry insurance versus not carrying health insurance.”

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