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Bachmann: health care bill would be unconstitutional

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 9th and 10th 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.

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Comments (17)

Seems to me that declaring all the health care bills in congress just now "unconstitutional" is right up there with declaring that I have a "right" to have someone else pay for my health care.

Gotta hand it to her, though: she surely knows how to stir up the hornets.

Yes, Eric, Bachmann is a lawyer. But you forget where she got her degree: Coburn School of Law at Oral Roberts U, which has since moved to Pat Robertson's Regent University and boasts John Ashcroft among its faculty. 'Nuff said.

Do you have a "right" to have someone else pay for your police and fire protection?
As Eric points out, the Constitution refers to the _general_ welfare -- an aggregate paid for by the country as a whole.
Someone who pays more in taxes is not entitled to more police protection (although he may in fact get it).

"provide for the common Defence and general Welfare of the United States."

My God, you can't be honest enough to publish a fact so obvious any private elementary school child would recognise.

Try the "official" version, Eric. It's what we use in the United States:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, *PROVIDE* for the common defence, *PROMOTE* the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

PROVIDE for the common defence, but PROMOTE the general Welfare.


Bachmann is truly brainless. How did she get voted into office? There is a related post at

Gosh, I just don't know how Rep. Bachmann can stand a chance debating issues against such scary smart liberals.

Constitutional scholars, psychologists and brain surgeons, everywhere you look.

Hey Eric, when you get hold of Bachmann's spokester, ask him/her who Bachmann was referring to among Obama's "more than 30 czars" when she said on KKMS radio this afternoon that "some of these people actually have been affiliated with the communist party." If she wants to play Joe McCarthy again, we should get some names this time.

Here is a link to what I feel is a credible comment concerning the constitutionality of health care proposals:

We must bear in mind that the Supreme Court majority that made the odd rulings cited in the opinions in the comment is still in place. A decade or so, I wouldn't have taken seriously the possibility that the Supreme Court would insert itself into the politics of national health care policy. I can't say that now.

While I hate to interrupt the comments of one Mr. Thomas Swift, especially because of the incredibly snarky tone he sets out, let me try to reduce what The Constitution says down to a level that a first grader can understand.

Article I is where the Constitution lays out the legislative branch. It tells us what it looks like (House and Senate), who can be members (no one under 25 for the House, and 30 for the Senate), and what kind of laws they can make. That last part is laid forth in Section 8. So here is what Section 8 says about the general welfare:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States..."

As you can see, the word "promote" doesn't appear in the part of the Constitution that says what Congress can and can not do.

While I appreciate that Mr. Swift did quote the Preamble of the Constitution, the Preamble is just a preface to give us a broad overview of what the Founding Fathers were going to be telling us in detail later. Later, in this case, turns out to be Section 8.

We clearly need to spend more money on education in this country.

The notion that health care reform may be "unconstitutional" and therefore should not be attempted, is a favorite ploy by the right.

In fact though, a ruling by the court that struck down "individual mandates" in a properly constructed program (that is, one with a government component), would also put Social Security and Medicare at risk. The court is extremely unlikely to do such a thing.

Roberts, Thomas, Scalia and Alito might privately agree that such a program would not meet constitutional standards, since all of them have expressed their disdain for things like social security and medicare, but only Scalia and Thomas are likely to actually vote that way.

Breyer, Ginsburg, Sotomayor and Stevens would take the opposite view. Although he often takes a conservative view, Kennedy would certainly uphold such a program based on his view that US law is properly influenced by other countries' legal traditions.

Result: If properly constructed, a national health care bill that mandates and provides for health care for every American would be found "constitutional" by a minimum margin of 5-4, and possibly as much as 7-2. This red herring is not an issue.

Letting the government use force to make me buy a product in the private marketplace goes against our individual liberty.

When you give that power to the government, you've given up your personal freedom and liberty guaranteed to us by the Constitution.

While these rights are reserves to the states and they have taken those to mandate car insurance in order to drive, you cannot mandate health insurance in order to live in the US. It goes against the law of nature. We can't choose whether we want to live or not like we can in order to drive or not.

Government power never yields to anything. Looks like a few people don't care. A government powerful enough to give you everything is powerful enough to take everything away. It does a good job of that.

To understand her argument, you need to know where this school of constitutional thought comes from. There is a large group of conservatives who debatably call themselves Constitutionalists who argue that, not only is the new bill unconstitutional, but that most bills providing for the "general welfare" through public health, education, and unemployment are also unconstitutional. They obtain this argument from James Madison, who argues in Federalist 41 that the general welfare clause is neither a statement of ends nor a substantive grant of power. It is a mere "synonym" for the enumeration of particular powers, which are limited and wholly define its content.

On the other hand, one must disregard Alexander Hamilton entirely in order to use Madison's contention to prove unconstitutionality. It is the Supreme Court's interpretation of Hamilton that led them to defend applications of the "general welfare" concept to education and health care, since Hamilton specifically defended the concept of public education before it ever existed, citing the "general welfare." To counter this argument, these conservatives like Bachmann argue that Hamilton and the "activist judges" who followed his theories are basically godless Commies.

To the person who quoted the Preamble, "general welfare" is mentioned twice in the Constitution and the author specifically cited Article 1, Section 8, enumerating the reasons why Congress may tax or spend money. This section specifically says "to pay the Debts and provide for the common Defence and general Welfare of the United States;"

Not an easy life, Mr. Black. By my estimation, you've watched Hannity at least twice in the past several week. Take care of yourself! Inaccuracy could be catching.

Paul Brandon says:
"John..Do you have a "right" to have someone else pay for your police and fire protection?"

An interesting thought, which requires some distinctions.

It seems to me that it is in the interest of the general population to have a force capable of excluding from our society those who choose to break our laws. It also seems to me that most societies in history have had the same perception.

It further seems to me, in view of the harm that a fire out of control can do to whole segments of a community (whether forest fires, or San Francisco type urban fires), that some organized force, whether paid or volunteer, to minimize the damage that fire can do is in the interest of the community. This, too, seems to be a concept shared by most societies.

It seems to me that since an educated public is required for intelligent participation in our republican form of democratic government, minimally educating our people also should be a burden supported by all citizens -- although I lament the current lack of ability on the part of the current public system of education to do its job while demanding ever more dollars in support.

It even seems to me, in view of the general harm that can occur from, say, an epidemic, that it makes sense for community health regulations to be in place, for government to subsidize the development of medicines and vaccines to fight diseases, and to foster the presence of medical facilities to provide care to those in need of it, just as it is in the general interest to foster the development of good transportation systems.

But I hold the line at providing medical services to the public "for free", just as I would object to mandated free vehicles and fuel, or airline tickets to anyone needing to travel.

While I believe it may be a government function to promote the availability and efficacy of medical services, I do not agree that tax supported actual provision of those services is a "right".

A society may generously choose to assist those economically UNABLE to participate in our society, but that is a far cry from making free or subsidized health care a "right."

I wonder if Thomas Swift will acknowledge his error. Perhaps this will teach him to exercise some restraint in his future tirades. I won't hold my breath.

we pay the police and fire protection.. whats that all about. like obama compared this healthcare to mandating auto insurance.... that is total off base. we arent cars and theres a constitution . does anyone know what socialism is ? i should not be mandated by government to be forced to have insurance and i shouldnt have to pay or my employer have to pay for people who are illegal or just too lazy.. thats what this is all about. it's a pay back with a ted kennedy excuse. if people want this kind of healthcare , go to england or canada. just donr come back here when it blows up in your face.