Michele Bachmann's Constitutional Ignorance

Having hit Romney on his ridiculous and contemptible Mediscare flier earlier today, I am now forced to defend him (sort of) from a completely ignorant attack from Michele Bachmann. In discussing the repeal of Obamacare (which is something I think almost all Republicans support), Bachmann claimed erroneously that there was no difference between the constitutionality of Obamacare and the constitutionality of Romneycare:


Plus, no state has the constitutional right to force a person as a condition of citizenship to buy a product or service against their will. It’s unconstitutional…


whether it’s the state government or whether it’s the federal government. The only way to eradicate Obamacare is to pull it out by the root and branch to fully repeal it. It’s the only way we’re going to get rid of it.

** SNIP **

Why? I just have to say this. It’s because President Obama embedded $105,464,000,000 in Obamacare in post-dated checks to implement this bill. We are never going to get rid of it unless we have a president committed to getting rid of it. And if you believe that states can have it and that it’s constitutional, you’re not committed. If you’ve implemented this in your state, you’re not committed. I’m committed to repealing Obamacare.

Michele Bachmann claimed during the course of the debate to be a lawyer, and she likes to talk about how much she loves the Constitution. It therefore baffles me that she has no apparent grasp of the very clear distinction outlined in the Constitution between the powers granted to the states and the powers granted to the federal government. According to the Tenth Amendment and centuries of constitutional precedent, states governments have inherent powers, subject only to the express limits placed upon them by the Constitution. The federal government, on the other hand, is a government of enumerated powers. What that means – as any first year law student or person of ordinary common sense can tell you – is that when asking whether a State has the authority to do X, you ask whether the constitution forbids it, and when asking whether the Federal government has the authority to do X, you ask whether the constitution authorizes it.


The entire argument for the unconstitutionality of Obamacare is that nothing in Article I permits the Federal government to mandate the purchase of insurance. On the other hand, the notion that States can compel the purchase of insurance is completely noncontroversial. States mandate the purchase of all kinds of insurance upon all kinds of their residents – the most common form of this with which people are familiar is compulsory liability insurance for automobiles. For Michele Bachmann to claim that there is no difference in the constitutionality of mandatory health insurance compelled by a State and mandatory health insurance compelled by the Federal government is either ignorance on display or dishonest pandering.

Now, as I said, this is only sort of a defense of Romney. Just because Romneycare is constitutional does not mean that it is a good idea; in fact, I think it is a spectacularly bad one. As I have explained before, Romneycare is easily Romney’s greatest electoral liability and his failure to distance himself from it will probably doom his candidacy. But claiming that everything that is a bad idea is also unconstitutional is a classic liberal tactic and Bachmann should have avoided the temptation to do so tonight.



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