Legal scholars divided over Congress' authority
By Donald Lambro
Congress has never before required citizens to purchase any good or service, but that is what both House and Senate health bills would mandate.I would hope that more people would begin to question the constitutionality of all this healthcare reform business.
While this debate has been overshadowed by other issues involving the plan's nearly $1 trillion cost and its government-run option, the constitutional argument strikes at a pivotal part of the health care plan's finances.
In 1994, the nonpartisan Congressional Budget Office noted that a "mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action."
"The government has never required people to buy any good or service as a condition of lawful residence in the United States," the CBO said. The statement was part of an analysis of then-President Clinton's ill-fated health care reform plan, which also required that all Americans purchase health insurance plans.
...Randy Barnett, a professor at Georgetown University Law Center, asks, "Where in the [Constitution] is the power to mandate that individuals buy health insurance?" His answer: Nowhere.
"The business of providing health insurance is now an entirely intrastate activity" beyond the regulatory sway of the federal government, he said.
Washington lawyers David B. Rivkin Jr. and Lee A. Casey argued in an Aug. 22 column in The Washington Post that Congress has no constitutional power to tell people what they must buy.