Does ObamaCare violate the US Constitution?

Posted on June 25, 2011


The Myth

The individual mandate of the new National Health Care Law does not violate the Constitution because it is authorized by the commerce clause. The health care law in itself is authorized by the general welfare clause. This law does not violate the Constitution in any way.

The Truth

The Constitution in no way authorizes the new National Healthcare Law. ObamaCare not only violates the letter of the Constitution in numerous ways it also violates the spirit of the Constitution in many fundamental ways.

The Facts

At the absolute foundation of our Constitutional Republic is this fundamental truth:

  “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed”

Our founding fathers firmly believed the Declaration of Independence and the Constitution are inseparable from each other. The Declaration of Independence not only called our country into existence, it invoked a fundamental moral and legal philosophy called Natural Law as it did so.

 Not only is Natural Law the foundation of the Declaration of Independence it is the foundation of our Constitution. The Declaration of Independence invoked Natural law as it created our country and the Constitution was written to preserve Natural Law as the fundamental legal and moral philosophy of our country.

 According to Natural Law each and every individual is granted their rights directly by God. All individuals are free to exercise all of their God-given Natural Rights as long as they do not harm others or interfere with others as they exercise their Natural Rights. That is the very definition of liberty: the freedom to exercise all of our God-given Natural Rights coupled with the responsibility that we cannot harm others or interfere with the rights of others.

Governments exist to protect us so we can freely and safely exercise our rights. If we harm others or interfere with the rights of others the government has the duty to restrain us to prevent further harm and to punish us as a way of discouraging others from committing similar offenses. A written and reasonable legal code is necessary to define what offenses constitute harm  of others and interference with their rights as well as the punishments associated with those offenses. If we do not harm others or interfere with the rights of others the government must leave us alone to live our lives as we wish. ObamaCare forces us to buy government approved health insurance whether we want to or not. The individual mandate is a direct violation of Natural Law and one of our most fundamental God-given Natural Rights, liberty.

All government decisions affecting our lives must be made at the most local level possible. This is the philosophy known as localism which is part of Natural Law and was firmly embraced by our founding fathers. Localism is enshrined in the Constitution. The more intimate or personal the decision the more local the decision must be made.  The more local the government is the more the people can keep a focused eye on it and  can more easily deal with it when it becomes abusive. ObamaCare directly violates the philosophy of localism by transferring the most intimate and personal decisions governments can possibly make from the local level, past the State level, all the way to the federal level.

 The new national health care law violates a fundamental constitutional principle simply by being a national law. The Constitution did not create a national government. It created a federal government with some limited, well-defined, national characteristics. One of the maim purposes of the Constitution is to prevent our federal government from degenerating into an oppressive, top down, national government. Our founding fathers wrote many protections into the Constitution to prevent our federal government from becoming so powerful it can reach down and micromanage the lives of each and every citizen of this country and each and every commercial enterprise operating in this country. ObamaCare gives the federal government enormous amounts of power to affect the daily lives of every individual living in this country and every company doing business here.

 Limited government, enumerated powers, and federalism are other fundamental principle of our Constitution that are violated by ObamaCare. We have a limited government because the Constitution created a federal government that is limited to only a small set of well defined powers. These powers are clearly spelled out or enumerated in Article 1 Section 8 of the Constitution. Article 1 Section 10 denies the States certain powers. According to the philosophy of federalism, all of the remaining government powers that are not granted to the federal government or denied to the States, which are a considerable majority of possible government powers, remain with the States and individuals. During the ratification debates for the US Constitution several States demanded the principle of federalism be spelled out clearly in the Constitution so the Tenth Amendment was added as part of Bill of Rights. This amendment made it absolutely clear that federalism is a fundamental principle of our Constitution. ObamaCare unconstitutionally  seizes a great many of the powers from individuals and the States and transfers them to the federal government. ObamaCare is not authorized by any of the enumerated powers of the Constitution. This legislation by its very nature violates the fundamental constitutional principles of federalism, limited federal government, and enumerated powers.

Progressive legislators have claimed several provisions of the Constitution do in fact authorize individual components of ObamaCare or the entire legislation. Those progressive legislators are completely distorting the plain meaning of these constitutional provisions as they were understood by the framers of the Constitution. It is only possible to claim ObamaCare is authorized by the Constitution if you separate these individual provisions from their historic context and distort their meaning so much that these individual provisions violate all of the fundamental principles of the Constitution as a whole.

Even though the individual mandate is a direct violation of our fundamental Natural Right of liberty, progressives claim it is authorized by the commerce clause of the Constitution. What they fail to mention is the commerce clause was added to the Constitution specifically to prevent the States from interfering with the large-scale transportation of goods flowing between the States. When the United States was operating under the Articles of Confederation the States were constantly imposing taxes on goods moving through their borders and States with harbors were slapping high import duties on goods meant for States that do not have harbors. The free flow of goods between the States nearly broke down on many occasions. There was nothing in the Articles of Confederation that gave the federal government the power to prevent the States from interfering with this free flow of goods. The framers of the Constitution wrote the interstate commerce clause solely for the purpose of granting the federal government exclusive power to directly regulate the large-scale transportation of goods between the States.

 Another clause of the Constitution that has been used frequently by progressives to justify individual provisions of ObamaCare or the legislation as a whole is the general welfare clause.

Wealth redistribution is a major component of ObamaCare. The wealth redistribution takes place in the form of many different taxes placed on wealthier individuals in order to fund subsidies granted to low-income individuals for the purpose of purchasing health insurance Progressives claim that this wealth redistribution is authorized by the welfare clause. Wealth distribution of any kind is not authorized by the general welfare clause or any other provision of the Constitution. In fact wealth redistribution is a violation of one of our most fundamental God-given Natural Rights. This right is enshrined in the Declaration of Independence with the phrase “the pursuit of happiness.” Pursuit of happiness means our individual right to acquire property and wealth and use it as we wish as long as we do not harm others or interfere with their rights. We as individuals have an obligation to pay taxes but only for those services governments have an obligation to provide, The federal government has an obligation to provide for the common defense of our country and things that improve the general welfare of our entire nation.

 There is no provision in the Constitution that grants the federal government the power to collect taxes and use that money to improve the welfare of individuals. That power is left in the hands of the States. The founding fathers knew it was dangerous to give that power to the federal government because it would give the federal government far too much power in general and far too much power over the lives of individuals. If that much power was placed in the hands of the federal government it would lead to massive amounts of inefficiency and corruption. With that much power placed in the hands of the federal government it would become so massive it would be a direct threat to the individual liberty. If that power was left in the hands of the States the federal government would remain small in comparison to the State governments so the States could provide an effective check against encroachments and abuses of the federal government.

States do have the power to mandate individuals buy health insurance and the power to redistribute wealth for the purpose of improving the welfare of individuals. These powers are not granted to the federal government or denied to the States so they remain with the State. Just because the States have the power to mandate individuals buy health insurance is it wise for them to use that power? If the federal government is not confiscating vast sums of wealth from individuals and the States and using it so inefficiently wouldn’t the individuals and the States have much more wealth to help those in need?

 ObamaCare violates the Constitution in numerous other ways. I discuss these in a second article I devoted to this subject. Here is a link to that article.

 The Proof

James Madison — Federalist 45 discussing federalism

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Alexander Hamilton Federalist 22 discussing the commerce clause

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy

James Madison — Federalist 42 discussing the commerce Clause

The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.

The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own.

Convention debates August 21, 1787 discussing the commerce clause

Mr Elseworth— It is best as it stands— The power of regulating trade between the States will protect them agst each other — Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves — There are solid reasons agst. Congs taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. The produce of different States is such as to prevent uniformity in such taxes. there are indeed but a few articles that could be taxed at all; as Tobo. rice & indigo, and a tax on these alone would be partial & unjust. 3. The taxing of exports would engender incurable jealousies.

Mr Williamson. Tho’ N— C. has been taxed by Virga by a duty on 12,000 Hhs of her Tobo. exported thro’ Virga yet he would never agree to this power. Should it take take place, it would destroy the last hope of an adoption of the plan.

Mr. Govr Morris. These local considerations ought not to impede the general interest. There is great weight in the argument, that the exporting States will tax the produce of their uncommercial neighbours. The power of regulating the trade between Pa & N. Jersey will never prevent the former from taxing the latter. Nor will such a tax force a direct exportation from N—Jersey

James Madison Federalist 41—general welfare clause and enumerated powers

It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.

”But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

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