Garden State Patriot

When I had the opportunity last week to question Congressman Rothman at the Wallington session, I felt it was important to address not just the specifics of the bill being pushed in the House but also to take issue with the concept that our national government was within its rights to even pass such a bill. As such, I challenged him on the matter; telling him that the Founders - who designed a national government of enumerated and limited powers - expressly forbade such profound government intervention in free enterprise.

Not surprisingly, Congressman Rothman contended that “he believed the power was there.” Of course, liberals tend to see a lot of powers that are not in the document that safeguards our rights and liberties for they simply reject the idea of a limited federal government. In this case, the Congressman (scary enough, a former constitutional law professor) would have us believe the Founders thought it OK for our elected officials to be de facto insurance salesman (Can you say ‘Senator Willie Loman,’ anyone?) Of course, this notion is absurd.

Interestingly enough, our friends at The Heritage Foundation have addressed this very question, debunking Congressman Rothman quite thoroughly.  

We have heard a great deal about the costs and benefits of a “public option” and “single-payer system.”  We have heard about the financial costs—and the other costs—of allowing the government to interfere with matters of life and death.  However, we haven’t heard whether the Constitution gives Congress the power to enact these plans. What does this say about the status of the Constitution in the minds our policymakers today?  If a concerned citizen asks a proponent of nationalized healthcare to point to the constitutional authority for such a law, he may hear that the “General Welfare” clause, the “Necessary and Proper” clause, or the “Interstate Commerce” clause enables Congress to create national public health insurance to act.

None of these clauses—or any others found in the Constitution—gives Congress the power to create a government healthcare system.

The “General Welfare” clause gives Congress the power “To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States.”  This clause is not a grant of power to Congress (as constitutional law professor Gary Lawson has shown). It is a limit to a power given to Congress. It limits the purpose for which Congress can lay and collect taxes.

During the founding, some Anti-Federalists were concerned that this clause “amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare.” But James Madison, the “Father of the Constitution,” explained very clearly that it granted no power to Congress. If the “General Welfare” clause gives Congress the power to promote the general welfare, then why specifically list the other powers in Article I, such as the power to establish post offices and post roads, or to coin money? Wouldn’t it be redundant to list them?

In short, as Madison argued, Congress derives no power from the general welfare clause, which merely serves to limit Congress’s power to lay and collect taxes.  Congress can only do so for purposes of common defense or general welfare, in the service of the powers granted to it elsewhere in Article I.

Second, “Necessary and Proper” gives Congress the power “to make all laws 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.”  Like the general welfare clause, this clause was not a stand-alone grant of power to Congress.  Rather, it authorizes Congress to make laws that are necessary (and also proper) to make the other grants of authority in Article I effectual.

In other words, the necessary and proper clause cannot itself authorize national public health insurance.  One would have to show that national public health insurance is necessary and proper to execute some other power granted in the Constitution.This puts the proponents of nationalized healthcare back where they started.

Lastly, proponents might argue that national health insurance is part of Congress power “to regulate commerce…among the several states.”  While progressives have often used this clause to expand the federal government, it does not apply especially to the creation of a national health insurance, because to create and engage in commerce is not the same thing as regulating commerce among the several states.

Nobody during the framing generation expected the commerce clause to expand the federal government’s authority to anything relating to or resembling commerce.  James Madison wrote that it is a power “which few oppose, and from which no apprehensions are entertained.”  The clause was designed to prevent some states from taxing goods that passed through their boundaries as those goods proceeded to market.

In case proponents of government healthcare latch on to another clause, the three clauses above and rest of Constitution are explained in depth in the Heritage Guide to the Constitution .

Of course, most progressive advocates of national health insurance are unconcerned whether the Constitution authorizes such a law when a pseudo-constitutional reasoning to reach the desired result will suffice.  But constitutionalists should not allow such attempts to dismiss the Constitution go unanswered.

Not only should this question not go unanswered, but as we conservatives engage with others on healthcare, it is imperative that we address – not just the specifics of the bill being proposed - but the larger issue at hand: that the nationalization of healthcare represents a direct threat and attack on our individual liberties for it undermines the very document the Founders established to protect those rights. It is the only way we will gain the high ground in the debate and the only way to begin to re-establish the system of limited government the Founders desired and created.

Cross-posted at Conservatives with Attitude!