The question, which came from a reporter for the right-wing Internet publication CNS.com:
“Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”
And Speaker Pelosi’s answer:
“Are you serious? Are you serious?”
Pelosi moved on to the next question; later, Pelosi’s press person, Nadeam Elshami, told CNS, “You can put this on the record. That is not a serious question.”
Ed Morrissey, of course, concludes that Pelosi did not answer the question because she lacked an answer and did not know what else to say:
Pelosi avoided answering the question, probably because she doesn’t have an answer. Her spokesman said that it was “not a serious question,” but if so, one would presume that Pelosi or her office could provide an easily-corroborated answer. After all, the Constitution is where Congress derives all of its authority. It’s not exactly a lengthy document. How difficult is it to cite the clause that enables Congress to impose a mandate on its citizens to spend money on anything but a tax?
Well, as it turns out, pretty darned difficult. The interstate commerce clause doesn’t apply because Congress doesn’t allow for interstate commerce in health insurance. The “general welfare” clause has never applied to individual mandates, which is why neither Leahy or Pelosi will invoke it publicly. If they trot that out in front of the Supreme Court, they’ll essentially be arguing that the federal government has the authority to impose any kind of mandates at any time on anyone in the country, which makes the limitations of power in the Constitution meaningless — and by extension, makes the Supreme Court meaningless as well.
It’s more likely that Pelosi was at a loss for words because she could not decide which of the thousands of laws Congress has passed in the past 220 years could stand if each one had to be explicitly authorized by the Constitution:
I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. 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.
Also, as many students of high school and college civics classes know, Article I of the Constitution contains the “necessary and proper” clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.
Many of today’s conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court’s interpretation of it compels an exclusively narrow interpretation.
As Ed himself says, “It’s not exactly a lengthy document.”
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