Monday, January 04, 2010

Utah Republican Senator Orrin Hatch Sets Forth Three Reasons Why The "Obamacare" Health Care Bill Is Unconstitutional


Alaska U.S. Senator Lisa Murkowski is not alone in her courageous battle to stop the health care boondoggle being stampeded through Congress. Utah Republican Senator Orrin Hatch has been leading the charge against the bill, focusing on the mandate that would force all Americans to buy health insurance.

In an op-ed piece published January 2nd, 2010 in the Wall Street Journal, Senator Hatch sets forth three reasons why the health care bill may be unconstitutional - and why some Republican senators might mount a Supreme Court challenge should it be passed and signed into law:

First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress's powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress's power to regulate interstate commerce. But in the 1995 case of United States v. Lopez, the Supreme Court rejected a version of the commerce power considered at the time so expansive that it would leave virtually no activities by individuals that Congress could not regulate.

A second constitutional defect of the Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators. Some of those deals do involve spending programs because they waive certain states' obligation to contribute to the Medicaid program. This selective spending targeted at certain states runs afoul of the general welfare clause. The welfare it serves is instead very specific and has been dubbed "cash for cloture" because it secured the 60 votes the majority needed to end debate and pass this legislation.

A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.

So why did Massachusetts get away with RomneyCare? Hatch has an answer for that question. The federal government may exercise only the powers granted to it or denied to the states. The states may do everything else. This is why, for example, states may have authority to require individuals to purchase health insurance but the federal government does not. It is also the reason states may require that individuals purchase car insurance before choosing to drive a car, but the federal government may not require all individuals to purchase health insurance.

Senator Lisa Murkowski continues her courageous crusade against the health care boondoggle. After the Senate vote on December 24th, Murkowski explained that premiums for individuals without employer-sponsored coverage would rise between 10 and 13 percent, the bill would impose a 40 percent excise tax on high value insurance plans, and the bill also does nothing to fix the Medicare reimbursement rate inequity for Alaska, which is already in a crisis situation.

This bill needs to be shot down by any means necessary. If people aren't buying health insurance because they can't afford it, it makes no sense to pass a bill forcing them to buy health insurance. And subsidizing them? Isn't our national debt large enough? This bill also has the potential to be massive corporate welfare for the insurance industry, delivering a gigantic captive constituency right into their hands.

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