By Susan Brinkmann, OCDS
Staff Journalist

When confronted by reporters this week, two leading lawmakers were unable to say what part of the Constitution grants Congress the authority to force every American to buy health insurance, a mandate that is included in every health care reform package currently under review by Congress.

According to a report by CNSNews.com, all five of the health care bills currently being considered in Congress are requiring that every American adult buy a health insurance policy that conforms to government standards for coverage and premiums. Each bill creates Bronze, Silver, and Gold health insurance plans and mandates that Americans buy one of them, either through their employer or through government-run exchanges.

However, when CNS reporters asked two prominent lawmakers where they were getting the authority to enforce such a mandate, neither could answer the question – and for good reason. Such authority does not exist.

According to the Congressional Budget Office, when this same issue was raised in 1993 during President Clinton’s attempt to pass health care reform, a mandate forcing Americans to buy health insurance would be an “unprecedented form of federal action” and that the “government has never required people to buy any good or service as a condition of lawful residence in the United States.”

However, when CNS reporters asked House Majority Leader Steny Hoyer (D-MD) to identify the clause in the Constitution that allows a government to force citizens to buy something such as health insurance, Rep. Hoyer referred to a section in the Constitution that allows Congress to raise taxes for the “general welfare of the United States.” He said a mandate to buy health insurance is constitutional because “it’s like paying taxes,” and added that Congress has “broad authority” to force Americans to purchase other things as well, so long as it was trying to promote “the general welfare.”

However, this is not correct according to Constitutional law experts such as David B. Rivkin, of Baker & Hostetler.

Rivkin called Hoyer’s argument “silly,” adding that if the general welfare clause was that elastic, then nothing would be outside of Congress’ powers.
 
“Congressman Hoyer is wrong,” Rivkin said. “The notion that the general welfare language is a basis for a specific legislative exercise is all silly because if that’s true, because general welfare language is inherently limitless, then the federal government can do anything.
 
“The arguments are, I believe, feeble,” Rivkin said.

Next, CNS reporters confronted Sen. Patrick Leahy about the matter, asking him to identify the section in the Constitution that gave Congress the authority to issue such a mandate.

“We have plenty of authority. Are you saying there is no authority?” the Senator asked. “Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that.”

The reporter continued to press the Senator, who finally said the mandate was similar to the government’s ability to set speed limits on interstate highways.

“Where do we have the authority to set speed limits on an interstate highway,” the Senator asked the reporter, who correctly answered, “the states.”

“No. The federal government does that on federal highways,” the Senator answered.

Prior to 1995, the federal government mandated a speed limit of 55 miles an hour on all four-lane highways but the limit was repealed in 1995 and the authority to set speed limits reverted back to the states.

Again, David Rivkin set the record straight, saying that the kind of mandate Congress is proposing, which would force Americans to buy health insurance or suffer financial penalties, “can only be based upon a view that Congress can exercise general police powers, a view profoundly at odds with the Framers’ vision of the federal government as one of limited and enumerated powers,” he said.

“If the federal government can mandate an individual insurance purchase mandate, it can also mandate an unlimited array of other mandates and prescriptions, including the mandate to buy health club memberships or even to purchase a given quantity of fruits and vegetables.”

“This state of affairs would completely warp our constitutional fabric, vitiate any autonomous role for the states and eviscerate individual liberty,” said Rivkin.  “It is profoundly un-American.”

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