On the Sean Hannity program (the TV version, on Fox News) last week U.S. Rep. Michele Bachmann said that the health care bills now before Congress, in addition to being bad ideas, would be unconstitutional. Here’s the quote:

Bachmann: “A lot of members of Congress may have forgotten what the Constitution says. But, again, it is not within our power as members of Congress, not within the enumerated powers of the Constitution, for us to design and create a national takeover of health care, nor is it within our ability to be able to delegate that responsibility to the executive.”

Hmm? One could certainly argue about whether Rep. Bachmann’s description of these bills (“a national takeover of health care”) is fully accurate.

But if the congresswoman is correct (and assuming that the Supreme Court, as the official arbiters of constitutionality, would agree,) then opponents of the bills needn’t worry whether they pass or not, because they will be struck down.

Rep. Bachmann is a lawyer, and presumably took a constitutional law class at some point. And it’s true that nowhere does the text of the Constitution even mention the word “health.” And it’s true that the powers of Congress are supposed to be limited to those “enumerated' in the Constitution. (Although this last is also not explicitly stated in the Constitution, you could make a case for it based on the 9^th and 10^th amendments.)

But Congress has done a great many things that are not described in the Constitution. The courts have found some comfort in these areas from the language (in both the preamble and in Article One, Section 8, which does enumerate the Powers of Congress) that authorizes the Congress to  “provide for the common Defence and general Welfare of the United States.

In fact, Congress has passed hundreds if not thousands of laws applying federal authority over health care matters. Regulation of pure food and drugs was an early historic breakthrough in this area. But what of Medicare, Medicaid, the health aspects of the Veterans Administration? In fact, almost every single American who has health insurance gets it either directly paid for by the federal government, or through the generous tax subsidy that makes employer-paid health insurance premiums deductible from federal income taxes.

For purposes of testing Rep. Bachmann’s assertion, Medicare is probably the best way to frame the question. Medicare is essentially a federal single-payer health system for Americans over 65. To paraphrase Rep. Bachmann, the 1965 enactment of Medicare did “design and create a national takeover of health care” for Americans over 65.

Was it constitutional? If not, what does she plan to do about it? Is there some logic by which the Constitution might authorize the previous applications of federal power to health care matters, and the “national takeover” of health care for Americans 65 and older, those poor enough to qualify for Medicaid, military veterans, federal employees and retired federal employees but bar the feds from any further involvement in the health care of everyone else?

I am attempting to pose these questions to Rep. Bachmann through her spokester. Bachmann will also be on the radio talking about health care this afternoon, during the 3 p.m. hour, on KKMS, 980 a.m., or listenable online via this link.