Universal Healthcare: Is it even constitutional?

There are many things within the healthcare proposal that have seen the limelight of debate: Should there be a public option, will illegals be covered, does a person have the right to keep current insurance, but of all these things, I think we are missing the most important debate.  Is universal healthcare constitutional?

Grounds:  Right to Privacy and due process.

As discussed in a earlier post, Section 1401, Pg 503 gives the government health care center undisputed access and authority to pull information from any government source.  In addition, Section 1651, Pg 734 allows, for law enforcement sake, the Attorney General to receive from the Director of HHS, all medical information when requested and Section 431, Pg 195 allows the HC administration access to all financial and personal records.   What impact do these sections have on a persons right to due process and to privacy?  In Griswold vs. Connecticut, the US Supreme Court recognized a constitutional right to privacy.  In addition, Whalen vs. Roethe court validated the duty to avoid unwarranted disclosure of personal information is rooted within the Constitution and the right to privacy.  It went on to state that “privacy involves two types of interests: individual interest in avoiding disclosure of personal matters, and an interest in protecting one’s independence in making certain decisions”. (William H. Roach, Medical Records and the law)

So with these two court decisions, we have precedence showing that we have the right to privacy in accordance with our medical information.  If the HHS uses our medical history to substantiate, or adjust, our health insurance allowance under a federal plan, then how is this not considered unconstitutional?  Likewise, with our medical records, financial information, etc being made available without written consent, on what grounds does the US government have access to this information?  If not charged with a crime or illegality, then it would seem that the government has no right.  One could claim that by signing up for the government plan, you provide your consent for access, but under the healthcare plan, subscribing to the plan is not an option, but a mandate.  If we are forced to enter into this plan, then by proxy, we are being forced to provide consent.  Where would this abuse stop?

Grounds:  Usurping of Federal Privilege via the Commerce Clause

Many healthcare proponents have cited Article 1, Section 8, Clause 3, more commonly known as the Commerce Clause.  This specific power granted to the Fed, allows for the “regulation of commerce with foreign nations, among several states, and with Indian tribes.” Using this clause, proponents content that the Fed has the power to regulate healthcare, as it deals with citizens of the US across all state borders; in addition, as health care comprises 1/6th of our GDP, regulation has a direct impact on economic affairs.  However, there are two major issues with this argument.

David B. Rivkin Jr. and Lee A. Casey cited two important court cases in the Washington Post:  United States vs. Lopez (1995) and United States vs. Morrison (2000).  In these two cases, the US Supreme Court rejected the notion that the commerce clause allowed the Fed to regulate non-economic activities, simply because, thru causal effects, they might have economic impact.  Judge Andrew Napolitano, expounds on this in his recent Wall Street Journal interview, by stating that the “practice of medicine consists of the delivery of intimate services.  In most all instances, this delivery occurs in one place and does not move across state lines.  One does not go to a doctor to engage in commerce, but to improve one’s health”. 

In addition, the application of the commerce clause is hypocritical when it comes to this issue.  Judge Napolitano continues in above article, to detail how Congressional regulation has allowed states to erect barriers that the commerce clause was expressly written to tear down.  In all states, Health insurance issuers are prohibited from selling policies to people in other states.  This artificially drives up health care cost, by disallowing the act of competition and individual policy creation.   Thereby, using this definition, its easy to see how the commerce clause would not apply to the health care debate.  How can proponents claim that this clause is the provision allowing the creation of universal health care, while on the other hand, the lack of the clause’s enforcement is a primary reason that health care insurance costs are so high?

Grounds:  Precedence of Roe vs. Wade

Ironically, a liberal agenda piece may actually be the guiding factor in determining the constitutionality of the universal healthcare plan.

In the 1960’s, the US Supreme Court created the right to privacy, and using that right, struck down a series of state/federal regulations of personal conduct, namely, the Roe v Wade (1973) abortion case.

While not abortion specific, the US Supreme Court established a constitutionally mandated zone of personal privacy that must be made free of government regulation.  The court explained this rationale in Planned Parenthood v Casey (1992) by stating:

"these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of human life."

If Roe v Wade upholds that a “right to abortion” holds true as a“choice central to personal dignity and autonomy”, then it would also seem to hold true that a person’s choice in intimate medical care would be covered under the same statue?  How could the inability to regulate fetal life within one’s own body, suddenly be found doable for the inclusion of medical devices, procedures, etc.  If the government cannot interfere or regulate a person’s physical body in the case of abortion, then it would likewise be unable to force a regulation in the terms of health care.

Rivkin and Casey state in another Wall Street Journal article that the weakness of the healthcare debate is shown via the principal of one size fits all approach.  Proper health care is uniquely individual as it is based on unique lifestyle choices, genetics, predispositions.  That under the health care proposal, the government seeks to a regularity in the application of governmental power with regards to health care practice.  By establishing this regularity, it will serve to limit the individual choice, taking primary decision away from the patient and their doctor, thus making the system constitutionally weak.

Grounds:  Improper Taxation

Lastly, within the healthcare bill, Section 313, Pg149-150 provides for a 2-8% tax on any employers who does not provide for the public option, while Sec. 401.59B, Pg 167 provides for a personal tax on any individual without health care.  Given the government’s right under Article 1, Section 8, Clause 1 of the Constitution to collect taxes, how could this be an argument for unconstitutional grounds?

First, Ernest Christianson explains to us in a Tax.com article that Article 1, Section 2 of the Constitution forbids direct tax that is not apportioned among several states according to their numbers.  In addition, Article 1, Section 9 states that “no direct tax shall be laid, unless in proportion with the Census or Enumeration herein”.  So given this, how is Congress pushing this tax thru with the healthcare bill?

Well, Sen. Baucus has claimed that the tax imposed on the uninsured is an "indirect tax” or an excise tax and doesn’t have to be apportioned.  However, Christian explains to us the error in this thinking, in that excise taxes are levied on a “thing”, not a person.  That a tax imposed directly on a person is akin to an income tax.  In addition, since this tax is levied only on those that fail to come under the plan, it is an unfair tax on action, which is beyond congressional authority.

In Bailey v. Drexel Furniture (1922), the Supreme Court established that Congress could not impose a “tax” to control behavior or conduct that it could regulate under the commerce clause.  In this case, the issue stemmed around the utilization of child labor, but the same precedent could be held for health care.  Since the tax included in the bill is only applied to those that choose not to participate, it is, in essence, a penalty for non-compliance.  Given the above shaky case for health care under the commerce clause, the precedent would hold true here.  As congress has no ability to regulate health care under the commerce clause, then neither does it have the authority to penalize the conduct (inaction) of citizens for non-participation.


For all the arguments against Obama Care, this is one argument that I would like to see more publicized. Lawyers are usually so quick to jump into the fray, but strangely, constitutional lawyers have been silent on this one.  Could it be that the Obama Administration is the lawyers saving grace, or is it that they too are scared to speak out against Pres. Obama for fear of back lash.  I know that the question has been raised to both the President, Speaker Pelosi, and others, but the idea of the bill being unconstitutional is always brushed off.  I find that a travesty and feel that we, the people, should demand an answer.  Why even go thru the debate and arguments if it can be found that the bill would not be legal under our founding documents. 


Sara said...


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