While it begins to look more likely that the Health Care Bill will get the sixty votes necessary to bring it to the floor for a vote, leading to the implementation of the largest takeover of private business since the New Deal, there are still reasons to not completely lose hope just yet. There still seems to be some question as to whether or not the bill will pass the constitutionality test.
First of all, while many will argue that this bill falls under the “General Welfare” clause enumerated in Article I, Section 8 where it states, “The Congress shall have Power To lay 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;”. The general welfare being used to state that if you do not have health insurance, something bad MAY happen and you will need it.
Another section that is used by Congress to regulate all kinds of things is the Commerce clause where it states that Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. This power is used for regulating all sorts of things by Congress, however one of the biggest roadblocks to competition among insurance providers is the inability to sell insurance across state lines. This means that if you live in Virginia, you must buy a Virginia health insurance policy. This is considered okay by Congress and is not removed in any of the proposal’s that Congress has put forward. This would lead one to think that there is no “interstate commerce” going on within the insurance industry and therefore should not fall under this clause.
The arguments against constitutionality all seem to be fairly well articulated, especially in the Wall Street Journal article, “Is Government Health Care Constitutional?” It states many reasons why it is probably not, but the most obviously applicable is the decisions used in the left’s most loved decision Roe v. Wade. If the court cannot regulate one medical procedure, how can they hope to regulate the process by where you decide any medical procedure? The right to privacy that was created in these earlier decisions seems to apply completely to the health care decisions one makes. When the federal government begins to get involved in medical decisions, it is time to strike this proposed law down as unconstitutional.
All of this being true, it is impossible to know how the courts will decide on any particular issue. For instance the campaign finance reform bill that was made law seemed to directly interfere with the First Amendment, but the Supreme Court did not see it that way and did not rule that law unconstitutional, so the best option is to hope that enough Senators come to their senses to keep this bill from becoming law in its current form. While there is obvious need for some reform of the healthcare system, for example limiting liabilities so that doctors do not have to pay exorbitant malpractice insurance rates and opening up competition by allowing groups and individuals to purchase insurance across state lines.