The “Ridiculous” Health Care Constitutionality Question


There’s something almost adorable about the way some people with a limited grasp of our nation’s constitution attempt to lean on, twist and otherwise molest the document in an attempt to support their own world view. The latest incident came after a reporter asked Nancy Pelosi where the Constitution empowered Congress to enact an individual health insurance mandate. Her response, calling the question itself “ridiculous,” has brought one of the old legal bogeymen back into the public eye. For those who stayed awake in school, of course, it should be obvious that the reporter asked the wrong question.

What he should have asked was, “Madam Speaker, do you really think the Supreme Court would let you get away with such a blatantly unconstitutional move?” Had he done that, Pelosi could have said, “What a ridiculous question. They always do!

And she would have been right, except for the use of the word “always,” unless she modified it to say, “always since 1942.” (More on that date later.)

Still, the Speaker’s glib response has caused some people to point to the hilarious attempt at a defense mounted by Professor Darren Lenard Hutchinson. You’re free to browse through it for amusement value, but here are the telltale bits to watch for.

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.

The consistent efforts by nanny-state advocates to read something into the constitution which simply does not exist always seem to go back to both the “necessary and proper” clause and McCulloch v. Maryland, though why this attempt is made remains a mystery. But there are two portions to this facetious argument which appear consistently.

First, the professor invokes the “necessary and proper” clause, which many people seem to attempt to conflate with the “general welfare clause” arriving at the false conclusion that the Constitution empowers Congress to do whatever is required to ensure the general welfare of the people. All of these champions of federal supremacy seem to conveniently forget that there are a few more words attached to the actual clause in question.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The clause does not represent some indication of a shadowy list of “other powers” as needed to suit your convenience. It simply establishes a mandate for Congress to be able to enact legislation to carry out the specific powers which are granted. If we were to assume that this empowers Congress to do whatever it wants as long as it promotes the “general welfare” then just as Professor Hutchinson argues from the other side, the rest of the document could just be thrown in the trash.

This brings us back to McCulloch v. Maryland, which also seems to engender a great amount of confusion. For those not familiar, James McCulloch was a cashier at the Baltimore branch of the second Bank of the United States. He refused to pay a massive tax on the branch, levied by the state of Maryland in an effort to destroy the bank, which the state government felt was unconstitutional.

Chief Justice Marshall rejected Maryland’s argument, and while debate still raged around the nation over whether or not the federal government should be able to establish such a bank, the court found that it fell under the umbrella of what was “necessary and proper” for Congress to regulate commerce between the states, as specifically provided for in Article 1, Section 8.

Marshall went on to argue that while the powers of government are limited, the “necessary and proper” clause was meant to enlarge the ability of Congress to carry out its enumerated powers. He wrote: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional…”

Of course, later courts have worked with Congress with a wink and a nod to undermine that finding. The courts held a fairly strong line in reigning in federal overreach, with a few minor exceptions, until the 1940′s. Largely, they relied on the written opinions of the founders, including James Madison, as noted in an excellent analysis by Walter Williams.

Indeed, as James Madison, the father of our Constitution, explained, “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 first serious breach in the dam came with a jaw dropping decision from SCOTUS in 1889. As explained in this analysis, it was the first time that the court actually stepped up to the plate and said they didn’t really give much of a hoot about what the founders intended.

The Supreme Court tried to stem the tide by holding legislation to the limits defined by the enumerated powers. Pressure from Congress and presidents gradually overcame the resistance of the courts. The first big crack in the defense appeared in 1889, when the Supreme Court ruled that the commerce clause was a positive grant of power to regulate the economy. They actually came out and said that “The reasons which may have caused the framers of the Constitution to repose the power to regulate commerce in Congress do not…affect or limit the extent of the power itself.” Once the reasoning of the writers of the law is ignored, any interpretation becomes possible.

The final blow came with the case of Wickard v. Filburn. A farmer was fined by the federal government for growing more wheat than a new, federally mandated quota would allow. The court then invoked the commerce clause in the completely farcical way which later became common.

Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The court reasoned that had he not grown the extra wheat he would have had to purchase wheat — therefore, he was indirectly affecting interstate commerce.

Experienced (and generally retired) members of Congress have regularly told stories about this. You see – and this is the key point – Congress has never made a serious attempt to claim that they have the power to pass any and all legislation which takes their fancy. They have always recognized that their laws must be made to look as if they fall within the constraints of Article 1, which is why they laughingly insert some boilerplate at the end of the most far reaching legislation coming up with some imagined reason as to why the forbidden behavior in question would affect “interstate commerce.” It infests our body of federal laws like ants at a picnic. And when a final health care bill hits the President’s desk for signing – assuming one does – I will make a wager here an now with any of you that it will contain that same boilerplate at the end. They know they don’t have the power to issue such a mandate under the Constitution unless they attempt to cloak it under the commerce clause.

There has been some good news of late, though. As pointed out in the Williams article linked above, in the 1990s the federal govt. attempted to impose the “Gun Free School Zones Act” which was challenged before the Supreme Court in U.S. v Lopez. The law also relied, amazingly, on the Commerce Clause to attempt to justify its existence. For once, the court rejected this fantastic rationale.

Why? Violent crime raises insurance costs, and those costs are spread throughout the population. Violent crime reduces the willingness of individuals to travel to high-crime areas within the country. Finally, crime threatens the learning environment, thereby reducing national productivity.

While all of this might be true, the relevant question is whether Congress had constitutional authority to pass the Gun-Free School Zones Act. The U.S. Supreme Court ruled it didn’t, saying, “If we were to accept the government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”

So there may still be hope. But it’s a slim one. Pelosi is right to be confident in her belief that it’s “ridiculous” that the individual health insurance mandate would stand up in court.

For a different angle on why these nanny-state arguments hold no constitutional water, see Ed Morrissey’s response to Kathy Kattenburg. The word “mandate” has a very specific meaning, folks.

UPDATE: I’m already getting e-mails along the lines of, “Well, what about the Air Force?!?” Please don’t be so silly. First, read Morrissey’s explanation linked above. Second, try to remember that the very specific power to provide for military defense of the nation was granted to the federal government by the founders. Adding planes (which didn’t exist at the time of its writing) isn’t much of a stretch, just as it’s not much of a stretch to imagine that the establishment of a national bank to regulate and control currency among the states would fall under the regulation of interstate commerce. Really… this gets tiresome after a while.


  1. Silhouette,

    So if the Congress has the power to mandate taxes for healthcare and this power derives from article 1, section eight, then why is there a 16th amendment?~ Andy

    The 16th Amendment:
    “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration”
    Andy, would you like to clarify your question as to the exact language in the 16th Amendment?

  2. The Constitution is a living document Jazz, subject to the will of the people at the time they will the interpretation of it or should they wish, the abolishment of it entirely, as was openly expressed within the Declaration of Independence against any government.

    If our Constitution means the oppression of the people it constitutes, then we should remember that it is merely a piece of paper and that we are Flesh and Blood.

  3. 9th Amendment:
    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”


    Article I, Section 8:
    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”
    So since one thing does not by it's order nullify another in the Constitution, the real weight of the debate is what has more national importance: protecting the right of the “citizen” corporations to profiteer by denying lifesaving access to healthcare for certain people unable to afford their rates Vs the rights of Citizens to have their lives protected by guaranteed access to lifesaving healthcare regardless of income level, job status and so on.

  4. Harry Potter has his cloak of invisibility. Pelosi and Reid haved their “it's silly or ridiculous” attitude to a legitimate question; can a resident (?) of this country be forced to buy (subsidized or not) health insurance? Yes, they say for the greater good and, ahem, to lower costs. Fine, should we not extend that to other “greater good” items like car, homeowner, long-term care and other insurances that would also promote the greater good? Maybe. There are gross inefficiencies in the 50-state insurance regulatory business.
    I think the health care system does indeed need a major overhaul, but perhaps we could start with the floor or catastrophe policy, as mentioned above, for all those that wind up as the “must be insured”.
    Also, all insurance people are not crooks or manipulators, as they are currently being portrayed for political purposes. While not being wholly nice guys, they do know the insurance business and they know not having a strong mandate will blow any health-care bill out of the water. Working WITH these folks and the medical community a little more closely, I feel, could yield some some more focused and modest solutions, while trying to much “overhaul” will rend a big inefficient bill.

  5. Sorry no.

    President Obama is my President, of whom I am well pleased.

  6. Hopefully, we have no cowboys riding nukes. Hopefully our nuke riders are educated, rational and above all, disciplined nuke riders.

  7. Regulation of health insurance does seem like a natural outcome of the interstate commerce clause.

    If correctly interpretted, the interstate commerce clause gives no such legislative authority to Congress. I covered this earlier today in the comments section to Kathy's post.

  8. The originalist argument about the Constitution is an intellectually satisfying one. However, it neglects the fact that we would have a tremendous upheaval in our country if we were to enforce the Constitution as written. For one thing, we'd have to disband our professional army – Congress is only authorized to raise funds for an army on a two-year basis (though they are authorized to provide a Navy continuously). A reading of the Federalist Papers makes it clear that we were never intended to have a professional standing army. We were to be a nation of citizen-soldiers who could be called up for defensive purposes through state-level militias.

    Who wants to start advocating for an elimination of the US Army?

    Beyond that, the very beginning of Article One reads, “All legislative powers herein granted shall be vested in a Congress of the United States…” One would have to think that “all” would include “governing insurance regulation.” Plus, the only reason insurance would be off limits for Congress to regulate would be that it is offered within a single state. Allow (or force) insurance companies to write policies across state lines and it is, by definition, interstate commerce.

    And, by the way, states would still retain the power to add additional constraints on insurance within their individual borders.

  9. Governing insurance regulation might be fine, but the question is can you force me to buy insurance?

  10. I think it depends on how it is done. Right now the government forces you to buy Medicaid for other people. If you believe the conservative argument that there is no fundamental difference between the government doing something and private contractors offering the same services for a fee through the government, then there's little room to protest.

  11. It's how well you do something (gov or private), that's my concern. I just don't think big gov. should bite off more than it can chew at this point. And, not being a conservative, I believe there can be a difference. Also, I could be lying in the street bleeding to death, and if I choose, I can accept or reject Medicaid; no one is forcing me to use it. But you are sure right, taxpayers do pay for the ones who need it and use it. Again, that being said, I think there should be a strong mandate or some kind of catastrophe insurance for “everyone”.

  12. Um yeah, that's great. So what part of my point do you disagree with and why?

  13. Jazz–

    Show me where I said there was a federal mandate.

    Of course I know it's a state requirement. But the government requirement that I buy insurance is a pre-existing condition.

    So: I am not outraged by a proposed requirement that I must purchase health insurance.

    I don't see it being terribly different. Again, I'm going to make reference to the comment by Dissenting Justice that I linked to earlier.

  14. “Congress is only authorized to raise funds for an army on a two-year basis”

    My understanding is that is what happens.

    “A reading of the Federalist Papers makes it clear that we were never intended to have a professional standing army. “

    Could you point me to a reference? (I'm not trying to argue, I honestly want to understand this argument). I admit that I haven't read all of the papers, but I have read quite a few and I know a few of them spend a lot of time arguing FOR a standing army, while at the same time admitting that there are dangers which is why the 2-year requirement is there.

    From the 25th: “If, to obviate this consequence, it should be resolved to extend the prohibition to the RAISING of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defense, before it was actually invaded….”

    “Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perserverance, by time, and by practice.”

    Sounds a lot like a professional military to me.

  15. It is hard to believe this is going on to more than 80 comments. The justification is in the Interstate Commerce Clause. The necessary and proper provision allows Congress to legislate and regulate any kind of economic activity as part of regulating interstate Commerce. The more sophisticated tenthers at least understand this and frame their argument that the mandate is not economic in nature. This all was discussed back in August when the Washington Post published an editorial claiming just that.

    See :

    Of course arguing that buying and selling insurance is not economic activity is not going to enhance anyone's reputation as a debater.. Therefore the discussions were pretty short.

    A discussion about the editorial from a fairly right wing legal scholar.

    The OP seems to follow the same line as the editorial without ever even getting to the weak non economic activity point. He cites Lopez saying that he hopes it means that the tide of an ever expanding Commerce Clause is stopping, without pointing out that gun procession in Lopez was ruled to be noneconomic. Which it is. And that the buying and selling of insurance is an economic activity and would never be considered anything but.

    The OP and many of the comments deride people for not understanding or not knowing the constitution. Like or not it is important to know the case law for the point under discussion not just the words in the document.

  16. Nic–

    We're just going around in circles at this point. There have been generations of Supreme Court rulings that support the interstate commerce clause as the basis for this (and, presumably, for many other things you don't like–and, undoubtedly, some things I don't like either).

    I appreciate your temperate, rational arguments. But they're not persuasive.

    I know you are a Libertarian and (unlike so many others who claim the same) are reasonably consistent in your philosophy. I respect that. But you are like the expert on general relativity in the physics department, rolling his eyes at the very notion of a ninety-degree angle. True enough, if you care to follow the math. But I want my house built by a Euclidian.

    In light of precedent, your claims don't hold water, let alone persuade.

  17. Merkin,

    Even many of those who have argued that the individual mandate is not constitutional have expressed regret that the supreme court has had such a broad interpretation of the interstate commerce clause. Even as I argue that it is not constitutional, I am unsure of how the court would rule. It is true that the court precedent is to count any economic behavior as affecting interstate commerce, however I also think that an individual mandate to buy health insurance is an unprecedented law (are there any other federal mandates to buy something?) and therefore how the court would rule is questionable. In any case, while I respect the court's constitutionally appointed position as the arbitrator of constitutional disputes, that doesn't mean I need to agree with their rulings.

    Additionally, the original dispute was whether the question was “ridiculous”. Even if it is true that the law is constitutional, that does not prove that the question is “ridiculous”.

  18. “The more sophisticated tenthers at least understand this and frame their argument that the mandate is not economic in nature. This all was discussed back in August when the Washington Post published an editorial claiming just that.”~Merkin M
    Indeed the mandate is not soley economic in nature. That's why I keep bringing up the related issue of corporations wanting individual status when it comes to Constitutional rights. In other words if their actions or deliberate inactions predictably and directly result in the death of another, they should be open to prosecution for manslaughter.

    If you think about the question of why we have a clause in Article I, Section 8 of the Constitution about providing for the general Welfare, how can you dismiss that basic healthcare is not part of our general Welfare? If something threatens the lives of 40 million americans, it's no big deal. But if 5,000 of them are killed in 9-11 then we will bend the Constitution over at the waist and have our way with it to justify an illegal war and torture all in the name of economic expansionism?

    [The question mark at the end of that sentence is supposed to inspire you to think about it.]

    My conclusion is that the “sillyness” Pelosi referred to is just exactly this hubris, this audacious shelving of morality at the expense of the overwhelming millions of Americans who will suffer of it. And yes, if you consider all the individual-rights that were sacraficed for Cheney and his gang of thugs to illegally invade another sovereign nation, spy on US citizens to keep them quiet and obedient to “the cause” then yes, the question from the reporter was absolutely, positively ridiculous..

  19. There is no infringement of individual rights to force someone to buy something. The states do it and portions of the federal crop support system are mandated.

    It is important to remember that the courts do not have the luxury afforded critics on the internet. The courts must make rulings that will be applied across a broad range of situations. For example, the drug laws so popular in years past were justified on the same interstate commerce clause and the necessary and proper extensions of economic activity. I don't care what you think about the drug laws but do you think you could craft an argument against the insurance mandate constituting economic activity but retaining the drug law's justification? Or any of the many federal laws based on the same justification that include laws you consider the best thing since sliced bread.

    When all of this came about in August there was a concurrence by Scalia passed around explaining the reality of the matter. As I assume the OP poster is, Scalia is a proponent of original, a dedication he feels he can abandon anytime he needs to support a conservative cause, as here. The case is Gonzales v. Raich here:

    The fact of the matter is that this is a poor way to oppose health care reform or anything else for that matter. If you hate the sausage factory making laws it is best to avoid the one justifying them under the constitution.

    The fact is that the health care reform is going ahead as a consequence of the last two elections and the desire of the electorate to change the course of the country from that of the previous administration. The health care reform was a large part of the reason for the outcome of the election. Proposals were made by both the sides. The status quo side's proposal lost.

    The loss of political power leads to predictable responses. Filibuster is used by people who decried its use only a few short years before. Fidelity to the constitution improves dramatically than over the years when civil liberties were curtailed under war powers invoked for a never ending war declared by executive decree. Judges shouldn't make law from the bench unless it is law we want and lack the political power to pass. Justify the unified executive when in power and the constitutionally limited executive when out.

    The sure way to stop health care reform or get any other thing we want is to present a better case to the electorate to get elected and governing well to keep power. Basing a campaign on a literal interpretation of the constitution and actually applying it equally to the all laws, even the ones we like (someone likes every law), seems like a loser. (And it would be the only way to impose such a strict regime since there is no explicit constitutional authority allowing the Supreme Court to overturn the laws passed by Congress)

    Certainly the question of individual mandates will be taken to the Supreme Court and will be ruled on. If, and there is only a small chance of this considering existing case law, it is found to be unconstitutional, Congress can resort to a blackmail type law to force states to use their powers to enforce mandates. Impose a tax and a requirement for states to pay for indigents. Force states to cover a higher percentage of the costs if they don't enforce an individual mandate.

  20. It seems that the power of the podium reigns supreme. Your question is silly because I am up here and you are down there. (Besides, I don't have an effective answer.) However, a cat can look at a queen (Pelosi) and know that her answer is disingenuous, and so can all of us. But, why get involved in this whole question: mandate, no mandate, when covering more (perhaps not all) of the country's “residents” is what we are after? Couldn't we do that by simply having the government provide folks, like those between jobs and others with some form of basic coverage? And yes, perhaps at taxpayer expense (not a subsidy, call it what it is). Couldn't left, right and center get on board with that, at least as a start, since there are other important elements, tort reform for example, that could and should, be addressed later?
    Right now, it seems many people are debating about how many angels can dance on the head of a pin.
    Someone, dems or reps should take the first step towards a simpler solution.

  21. The States are in favor of a Public Option mostly funded out of the DC purse. How could they not be? Schwarzaneggar is probably wiping the drool away from his mouth at the very thought of that money flow. And everybody knows it from the condition of California and how this act would be a welcome life preserver. Which of course makes Schwarzaneggar twice the coward for not standing up audibly and vocally for the Public Option. Dozens of governors are drooling at the prospect of help in the health care department. And taxpayers should be too since they ALREADY ARE PAYING FOR THE MORE EXPENSIVE ER OPTION for the 40 million uninsured and countless millions of others underinsured or on the brink of becoming uninsured..

    The States want the Public Option. The Constitution provides for its implementation in Article I, Section 8 under “general Welfare” and the power to collect or generate revenues to support the general Welfare.

    I was talking precidents incidentally. The money mob wants its cake and to eat it too.

  22. We're still waiting for a legitimate defense of what is being sought. The usual list of bogus arguments (“general welfare” clause, “interstate commerce” clause, “necessary and proper,” “equal protection,” misconstruction of the Tenth Amendment, misconstruction of the Ninth Amendment, any and all references to the Preamble, et cetera) remains that, a list of bogus arguments.

    Pelosi should have answered the question. I suspect she refused not only because she was being imperious but because she knew she would have difficulty answering. (The same may be true here.)

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