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Suppositions on the Amendments

In my last post I wrote about some constitutional concerns and shall now address this issue further.  Although the Bill of Rights contains no provision which prevents Congress from exercising its commerce regulatory and tax-and-spend authority to prescribe mandatory health insurance, the two amendments most often cited by those challenging the PPACA are the Fifth and Tenth.  Hayes and Rosenbaum discuss these in their brief.  Staman, et al., cover these well in their CRS Report, “Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis.”

The Fifth Amendment reads: “No person shall be...deprived of life, liberty or property, without due process of law, nor shall private property be taken for public use, without just compensation.”  These are the so-called Due Process and Takings Clauses.

Requiring a person to spend money he does not want to spend could be viewed as a deprivation of property or liberty, only allowed with “due process.”  As Lazarus in his brief, “Mandatory Health Insurance: Is it Constitutional?” notes, “Since 1937 the Supreme Court has never invalidated a federal economic regulation as the unconstitutional deprivation of “liberty” under the 5th Amendment.”  There is no right to be uninsured.  Therefore, he writes, “To uphold such a requirement, unless a right that has been defined as “fundamental” is at stake, Congress need only demonstrate that the challenged requirement is ‘rational.’  The current health care reform mandate amply meets that standard.  The opponents’ briefs against the mandate avoid making a substantive due process challenge.”

As for the Takings Clause, Lazarus concludes, “In short, opponents can point to no constitutional provision to trump Congress’ straight-forward black-letter argument−the mandate is a rational means of promoting indisputably ‘legitimate’ statutory goals appropriate for Congress’ broad powers.”  Hall agrees,” The Takings Clause is the most plausible way to express the basic libertarian instinct that opposes the government forcing someone to spend their money on something they feel they don’t want or need.  Therefore, it is highly unlikely than a takings challenge would succeed.”

In December 2010, Republican Senator R. Wicker of Mississippi introduced a “states’-rights” bill, the 10th Amendment Regulatory Reform Act, which mirrored  one introduced by Republican Representative Tom Cole on 25 March 2010.  It would allow state officials to challenge the constitutionality of proposed regulations prior to their initiation.  This is thought to be a method to attack health care reform.  The 10th Amendment, described by Chief Justice Harlan Fiske Stone as having no substantive meaning, is now being used by partisan opponents of the ACA.  One can only presume that these people forgot the phrase “to the people.”

Jennings and Hayes, in their paper “Health Insurance Reform and the Tensions of Federalism,” state, “As health care reform is implemented a new set of federalism-related tensions will arise regarding the best ways to ensure health care coverage for all Americans.”

The Tenth Amendment reads: “the powers not delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States, respectively, or to the people.”

The Court has set an important limit to federal power by the general federalism principle of respecting states’ sovereignty with the key concern being “forced participation of the State’s executive in the actual administration of a federal program...”  Such decisions and the related federalism concerns have been interpreted as prohibiting only what has come to be called “commandeering,” i.e., commanding state officials to implement federal laws or otherwise directly invading state sovereignty.”   When Congress does not require the states in their sovereign capacity to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals, the Court has ruled that there is no federalism constraint on Congressional power.

The 10th Amendment by itself appears to address only the process by which the deferral government regulates the states.  There is no substantial argument that the individual responsibility requirement would “commandeer” state legislative or executive branch officials, as the obligations imposed are on individuals.  Existing case law would not support the argument that the PPACA violates the 10th Amendment.  In modern times the 10th Amendment to date has only been used to limit Congress’ regulatory powers under the Commerce Clause.

U.S. District Judge Norman K. Moon, in his ruling on the Liberty University challenge, states:

“The [Tenth] amendment is violated if...the means of regulation employed impermissibly infringe on state sovereignty by undercutting and displacing state authority and by commandeering state legislative functions.

Plaintiffs allege that the requirement that individuals obtain health insurance...undercuts and displaces state authority, although they do not explain in any detail what state authority is being intruded upon. 

        ...there is no foundation under Johnson for invalidating the regulatory scheme.

        ...the Act is clearly constitutional.”

This supposition opposing the PPACA, based on plaintiffs’ interpretation of the 10th Amendment, is completely without merit.

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