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HR3200 is unconstitutional!
Examiner - Seattle

Maybe Obamacare, which is now going to be Kennedycare really needs to be called Robertscare (after Supreme Court Chief Justice John Roberts) if it ever sees the light of day. That may be the ultimate resting place for HR3200.

If you enjoyed the Supreme Court’s involvement in Bush-Bore 2000, you might love their involvement in HR3200. Even if the bill is pushed through by Democrats under reconciliation and signed by the President, is the battle over? I really am not sure. I see two very strong arguments (and probably many more).

The first is by the INSURERS and STATE INSURANCE COMMISSIONERS. If a bill is passed that requires insurers to cover regardless of pre-existing condition and requires them to have certain provisions in their policies, I think you can see a challenge by the insurers. Currently, the only governments that govern this are the states. Insurance is state regulated. That is why it doesn’t cross state lines. There is at least a very strong argument that Congress lacks the power to legislate what must or must not be in insurance policies.

Insurance policies are contracts between citizens of the United States. There is no clear reason why Congress can regulate them.

This doesn’t always stop Congress. They really can’t regulate speed limits so how did we get a 55 MPH national speed limit. Congress didn’t pass it. If you went 56 miles an hour, you were a state criminal not a federal one. No, Congress passed a law saying the 50 states could not get highway funding if they didn’t have a 55 MPH speed limit.

Congress could not establish a national unemployment compensation program. They could impose the FUTA tax but they couldn’t run the program. They don’t! They provide funds to the states that ratify their recommended program and the states run it.

At times, Congress played these games because it knew its powers were limited. Has it forgotten? Maybe. Reading HR3200, I think so. Where is Professor Ripple when I need him?

The second group may be the INSUREDS. We insureds are true communists you know. Insurance is a collective. It is a sharing of risk. By keeping really high risk people out—like those we already know are sick—we help keep down the experience losses and thereby the rates. What happens if we now see everyone covered without regard to risk—our rates go up. Our rates go up because of an act of Congress. Our rates go up directly as a result of Congressional action. Can we argue an unconstitutional taking without due process? Sure. Will we succeed? I think I like the first argument better.

OK, what is he smoking. Everybody KNOWS Congress can do this. Well, what can Congress do. Look to Article 1, Section 8 of the United States Constitution which sets forth the powers of Congress. These include:

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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

There are also powers that deal with the Post Office, D.C., military, etc., that are not in any way impacted by this discussion.

Of greatest import, the Tenth Amendment (and the overlooked 9th) makes clear that the powers given to the federal government are ONLY those given to it explicitly. All other power resides in the states and the people. In fact, power under our Constitution is an inverted pyramid, which the people at the top having the most power, then the states and then the feds. Let’s just say, that has changed a bit over 200 plus years.

The only possible basis for HR3200 is the commerce clause. The commerce clause has been the hole they have driven all federal programs through but by its very nature, health insurance isn’t in interstate commerce. Health care might be but that is a stretch. Recall that most welfare programs in this country while funded by the feds are run through the states for the very reason that the feds cannot run them.

See, the problem is that HR3200 regulated health insurance, an intrastate commerce matter, rather than the medical industry. It is one of the reasons why the single payer system I prefer is one run by the states—because they have the power to do it.

So, I ask you all. Read those powers of Congress and tell me, how can they do what they want to do? At least the maligned HR676 lets people into Medicare—cleaner. It doesn’t try to change state powers over insurance.

HR3200, regardless of what you think of the merits, is truly a large expansion of federal government power. Some people might prefer that. Some people might think the federal government is better able to serve the people in this area. But, how can anyone suggest the federal government has the power under the Constitution. It isn’t there!

The truth is that we have all grown up with this notion of the all powerful federal government. We hear how states’ rights are a thing of the past. A lot of that is true. But, darn it, they never changed Article 1, Section 8 and it is hard to fit HR3200 in there.