Claim: Attorney's essay challenges the constitutionality of health care reform legislation.
Example:[Connelly, August 2009]
The Truth About the Health Care Bills
Well, I have done it! I have read the entire text of proposed House Bill 3200: The Affordable Health Care Choices Act of 2009. I studied it with particular emphasis from my area of expertise, constitutional law. I was frankly concerned that parts of the proposed law that were being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.
To begin with, much of what has been said about the law and its implications is in fact true, despite what the Democrats and the media are saying. The law does provide for rationing of health care, particularly where senior citizens and other classes of citizens are involved, free health care for illegal immigrants, free abortion services, and probably forced participation in abortions by members of the medical profession.
The Bill will also eventually force private insurance companies out of business and put everyone into a government run system. All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals. Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.
However, as scary as all of that it, it just scratches the surface. In fact, I have concluded that this legislation really has no intention of providing affordable health care choices. Instead it is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated. If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.
Michael Connelly
Retired attorney,
Constitutional Law Instructor
Carrollton, Texas
Origins:Michael R. Connelly is a former U.S. Army officer and Louisiana attorney. On 12 August 2009 he posted on his blog the above-reproduced essay opining that portions of HB 3200 (The Affordable Health Care Choices Act of 2009), a health care reform bill under consideration by Congress, were unconstitutional.
That some provisions of the recently passed health care reform legislation might be unconstitutional is an opinion that has been expressed by others. In a January 2010 Wall Street Journaleditorial, for example, Orrin Hatch, J. Kenneth Blackwell, and Kenneth A. Klukowski argued similarly, stating (in part) that:
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.
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.
A third constitutional defect in this 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. This violates the letter, the spirit, and the interpretation of our federal-state form of government.
Still others, such as Akhil Reed Amar, a Yale University law professor (and the author of America's Constitution: A Biography) have argued that "Obamacare" provisions do not run afoul of constitutional limitations on government, writing (in part) in a Los Angeles Timeseditorial that:
I have spent the last three decades studying the Constitution, and the current plan easily passes constitutional muster.
It's true that the Constitution grants Congress authority to legislate only in the areas enumerated in the document itself. Other matters are left to the states under the 10th Amendment.
But if enumerated power does exist, the 10th Amendment objection disappears.
Under the interstate commerce clause of Article I, activities whose effects are confined within a given state are to be regulated by that state government, or simply left unregulated. But the federal government is specifically empowered to address matters that have significant spillover effects across state lines or international borders.
Today, that power properly extends to regulating such things as air pollution that wafts across state lines or endangered species that migrate across borders. The healthcare bill clearly addresses activities that cross state lines.
All such pronouncements were the opinions of their issuers: in June 2012, the Supreme Court upheld the constitutionality of "Obamacare" health care reform legislation.
