No, I'm not a lawyer, but I do play one on my blog. A reporter for CNS News asked a startled House Speaker Nancy Pelosi today ... well, I'll let them tell you.
The exchange with Speaker Pelosi on Thursday occurred as follows:
CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”
Pelosi: “Are you serious? Are you serious?”
CNSNews.com: “Yes, yes I am.”
Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandated that individual Americans buy health insurance as not a "serious question."
“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”
The question, and it is indeed a serious one, is can Congress write a law requiring that an American citizen purchase a good or service? Under what clause of the constitution does such authority fall? Because an individual mandate is, make no mistake, a requirement to purchase a service. Ms. Pelosi and her spokesman don't think this is a serious question. Here's a defense of their position at Dissenting Justice, discovered at Memeorandum.
The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:
It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).
The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.
If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.
And here is the logical fallacy. The conservatives' concern here is not that something unmentioned in the Constitution is being put in place; rather, the concern is that the freedom of Americans to choose not to participate is being infringed. I happen to agree that Congress has the authority to create a health care reform design for the nation (though an argument can be fashioned that it is not interstate commerce, in that health insurance does not cross state lines). I also happen to think it's a bad idea to do so. But that's not the question. It is, instead, can Congress mandate participation in that system?
The Constitution doesn't discuss Medicare, but, having set up the system, Doctors and patients are each free to participate, or not. Yes, that's President Obama's favorite medical center not participating in Medicare. Such freedom of economic association would be eliminated by the mandate. This is what the CNS News questioner was getting at, and Ms. Pelosi should have a coherent answer handy next time the topic comes up. And it will.
So, Glenn, for a physician, how'd I do? Probably not enough citations of case law and SCOTUS precedents.
10/23/09 1140: Speaker Pelosi could do worse than peruse Randy Barnett at Volokh on the matter.
10/24/09 0950: It seems Ed Morrissey encountered the same straw man argument.
So I’ll ask again: What authority does Congress have to mandate that people buy a product? What precedent do they have to threaten people with imprisonment if they don’t buy a product merely for existing, as opposed to a prerequisite for accessing public roads as with car insurance? The reason why Pelosi, Leahy, and Hoyer refuse to answer those questions is because they don’t have an answer to them.
A few brave souls will argue that the “general welfare” clause means that Congress can mandate anything that they see as beneficial, but that misreads the word general – which meant the welfare of the nation as a whole, not a responsibility to make each individual citizen’s life choices for them. The opposite reading would have made Congress a totalitarian monster, with the executive as its hatchetman, and the founders would have scoffed at such an interpretation.
10/24/09 1215: Thanks for the linkback, Ed.
