You mean does it have the power (“may”) and possibly the responsibility (“must”)?

It doesn't.

The firmest soft ground on which supporters may honestly tread is what is implied by having federal as well as state citizenship, coupled with what is commonly associated with this in our modern (post-World War II in particular) environment with the modern (if unsustainable in its current form) welfare state.

(And even that obviously does not grant unlimited powers to Washington nor retention of those not granted or reasonably implied by what powers Washington obviously has.)

One of the books I've long read and owned (by the best known-legal scholar and author on the subject of impeachment since Watergate) might be of assistance as (often remedial) reading for many.

http://www.amazon.com/Federalism-Founders-Desig…

Too many of the militants are ignorant as well as childish. We smarter folks who know we're exchanging one set of problems for another by going to more federal health care (which is what nearly everybody who wants government health care wants; they care no more for state governments than any other facet or iota of federalism or constitutionalism) at least don't want us to be rushed stupidly into this, which is not only a feature of this current effort, but which is characteristic of the harried, destructive lib Dems all this year.

We who are smarter are braking things, and trying at least to insist on some intelligent kind of a controlled descent with incremental federal takeover, while the militants (including those on this site) are ignorant of reality and insist on a fully powered (even accompanied by afterburners) power dive (with the crash we smarter people know is being obviously risked if not deliberately sought).

The constitutionality of so much (2/3 and more) of what Washington does is open to serious question, even if so much of is established as well as accomplished fact with so much public support in addition to vast ignorance that we can't expect a “return to the Constitution” ever, and I've surpassed many a lefty by saying we should admit and recognize this by making all the feds do and as much more as it conceivably can do, fully constitutional and unconstrained to achieve clarity as well as correctness in our future.

It all falls on blind and deaf people, or on those who cannot accept that they are so badly wrong. [shrug]

As for federal health care, we have accomplished fact from the 1960s that has established a precedent, namely Medicare, so we lamentably must be concerned with good or bad of what else the feds might do, rather than its essential propriety in the first place (lost among a population who is stupid or doesn't care).

The problem with the government trying to force everyone to have insurance is what is the enforcement mechanism. Will it be that everyone who files an income tax form have to show proof of insurance?

Ok, I'm glad we cleared that up. Then I'll refer to my other parts of my response, regarding whether those uninsured Americans really would have a substantial effect on interstate commerce absent other government regulations, and whether mandating the purchase of insurance is really the only way (and therefore necessary) to address the problem.

As fun as this debate is, it's only hypothetical because an individual mandate actually isn't being proposed. The only thing close to a mandate is a tax penalty if you don't purchase insurance, which as I've said is a way around the constitutional issue which might follow the letter of the law but not the spirit. So, since this isn't an issue that important to the current debate, I think my time is best used elsewhere. No offense intended.

None taken.

Not meaning to detract from the serious discussion going on here, I would like to submit my “tongue-in-cheek” answer the the central question: “Under what provision of the Constitution does the government have the right and/or responsibility to provide health care in any way, shape, or form?”

Obama, the former constitutional instructor at University of Chicago, will chew on a few breath mints–perhaps a combination of “Euromint” and “Frisk” would be the magic elixir–to help him breath new constitutional life into the Fifth Amendment.

Obama will start the process of stacking the Supreme Court with statists.

Eric “The Law Unto Himself” Holder will personally argue before the Court that, because the Constitution is now officially a living, breathing document, the Eminent Domain clause can be injected with a breath of fresh statist air and thereby stretched to include not just property, but the human body as well.

Under the “takings clause,” the Court will rule that that the government can legitimately claim ownership of people, their bodies, and, of course, their health. Justice Sotomayor, in her unfathomable, and now constitutionally unpardonable, Latina-feminist wisdom, will write a “one sentence” opinion for the majority: “Our decision goes without saying.”

(This manner of rendering Supreme Court decisions will establish a new “green precedent,” justified by the need to save taxpayers the cost of ink and paper that were previously spent on those oh-so-wordy opinions.)

We will be literally and figuratively taken.

Tom “The Body Snatcher” Daschle will then be appointed “Health Enforcement Czar” with the patriotic mission of “leveling the health care playing field” and “spreading the health around.”

Joe “The Plagiarizer” Biden will call on us to adhere to our “patriotic duty” to pay taxes–with the exception, of course, of families making less than $250,000, who are absolved of the duty to be patriotic, and are encouraged to plunder the wealth of the patriotic producers.

Panels of health czars (“Useful Lifers”) will calculate our useful half-lives.

Panels of spiritual czars will be appointed to help us find this new meaning in life:

A half-assed, half-life ain't half as bad as the alternative.

Dr. Gregory Garamoni
Founder, Doctors on Strike for Freedom in Medicine
http://www.doctorsonstrike.com

No. That's not what he's saying. He's saying that the existence of “millions of uninsured Americans has a substantial effect on interstate commerce.” Therefore, the argument that mandatory insurance coverage is unconstitutional is invalid because Congress has the authority to regulate interstate commerce.

Do you agree with Dissenting Justice that a mandate being “essential to achieve the purpose of reform” would necessarily make it consitutional? Maybe I'm misunderstanding what he was trying to say, but it seems to me that he is trying to say that the government has the right to implement whatever policy it wants, so long as that policy is necessary for some reform that it wants to pursue. I think I must be reading that wrong because that's indefensible. By that logic, all one must do to show torture is consitutional is argue that it is necessary for national defense. Some Bush supporters attempted to make that argument and I disagreed with it then as well.

As for whether having a lot of uninsured people affects interstate commerce, it seems to me the only reason why it might is because of other federal and state regulations that force health care providers to provide care to the uninsured. Absent those regulations, I don't see how someone not being covered affects interstate commerce. That's what I was getting I when I asked “And would it if there was not a mandate on hospitals to provide care of the uninsured?”

Now, I'm not arguing that such regulations are bad, just that I don't think you can create a regulation which might create an interstate dependency, and then rule that the activity counts as interstate commerce because of that regulation. I think that in order to show that a particular activity is interstate commerce, it must be shown to do so independent of other government interventions.

And in any case, the question is beside the point, because there are other ways to decrease the number of uninsured that don't rely on an individual mandate. Therefore, showing that the federal government has a right to try to lower that number of uninsured does not lead to the conclusion that it has the power to create an individual mandate.

I return to my original question: to those who would support an individual mandate as consitutional, can you provide an example of some mandate to buy something that congress might propose that you would consider unconstitutional? If there is none, then the constitution sure uses some awkward language to suggest that the congress really has any power it wants to control the economic decisions of the citizens.

I wouldn't be surprised to see lots of young healthy people choose not to have any. Chances are they will save money, but there is always the “what if”.

Simple solution:

If you don't have Health-insurance and you can't afford care, we throw you out of the hospital and leave you to die on the sidewalk.

What do you say?

AdelinesDad writes:

How does it? [have a substantial effect on interstate commerce]? And would it if there was not a mandate on hospital to provide care for the uninsured?

To the first question, because large numbers of uninsured Americans significantly raises the cost of both health care services and private health insurance policies. I'm guessing that your second question is suggesting that the mandate on hospitals to provide care for the uninsured helps to neutralize, or reduce, the significant negative effect that large numbers of uninsured Americans have on interstate commerce. But it doesn't. Quite the opposite — it worsens the problem, because the vastly increased costs of hospital ER care for preventable health issues that could have been and should have been addressed at a much earlier stage gets passed on to you, and to all of us. It raises the cost of health care and of health insurance policies.

The federal government only regulates drugs sold in innerstate commerce or imported into the U.S. as virtually are drugs are these days. Look at how California tried to regulate cars differently that other states and all of the progressives thought that was a great idea. Now that there is an Obama Administration, now states have no say.

Medicine is regulated at the state level with state licensing. Medical facilities are regulated at the state level. Insurance is regulated at the state level. Congress should not have the ability to dictate how ever state regulates the insurance industry.

But then again, progressives are the ones proposing hate crime legislation, regulate speech and association, religion.

1) Is Universal Health Insurance Coverage constitutional?

2) If it's not, what specifically makes it unconstitional?

I agree with the authors with regards to the first question but not the second question.

Universal Health Insurance Coverage mandated or regulated by the federal government is NOT constitutional, but not for the reasons argued by the authors of this article. Mandating/regulation Universal Health Insurance Coverage is not constitutional for the simple reason that the U.S. Constitution does not grant such powers to the federal government. It has nothing to do with the U.S. Supreme Court rulings generated by Wickard v. Filburn or Gonzales v. Raich, both of which were based upon seriously flawed interpretations of the interstate commerce clause.

Basically, we have a federalized system of government, meaning that there are two levels of government operatingsimultaneously: federal government and state government. Under such a system, certain powers are delegated to the the federal government, and certain powers are delegated to the individual states. The U.S. Constitution (specifically the tenth amendment) makes it clear that on issues that are not specifically addressed by the U.S. Constitution, power is assumed to lay with the individual state governments.

This is as opposed to a unitary state government (such as the United Kingdom) in which the central government is supreme, and local governments only have those powers which are specifically delegated to them by the central government.

This is not a philosophical question of whether the government should be involved in the regulation of health care insurance. It is a legal question regarding which level of government (state versus federal) would have the power to regulate health care insurance, should the people want that. I see no basis in the U.S. Constitution that would grant the federal government this power.

How does it? And would it if there was not a mandate on hospital to provide care for the uninsured? And, implementing public policy that lessens the number of uninsured (or even drops it to zero, hypothetically), would not necessarily be unconstitutional, depending on the method used. An individual mandate would not be constitutional, for the reasons I've already mentioned.

“and whether requiring universal coverage is essential to achieve the purpose of reform: reducing costs and expanding accessibility in health insurance and health services markets.”

If your reasoning for why it would be consitutional is that it would be “essential to achieve the purpose of reform”, then I'd say that that shreds the constitution, since it means that we can ignore the principles within it whenever we deem some action essential to achieve some purpose. If that's the case then the constitution has no meaning.