The debate on national health-care is very complicated, filled with hard questions and answers such as costs, morals, etc. One question that has not been discussed much is whether national health insurance is even Constitutional or not? I’m sure the leftists won’t be too interested in this argument, but I’d like to lay out an argument for why national health-care is not constitutional.

First lets discuss where any possible authorization for any kind of national health-care spending might come from. It seems that there are three possible choices for giving Congress the authority to set up a national health plan, those would be; the “General Welfare” clause, the Necessary and Proper” clause and the “Interstate Commerce” clause. My argument is that under an originalist view point none of these clause gives the federal government or the US Congress the authority to create a nationalized health-care system.

Let’s start with the “General Welfare” Clause. The Clause, found in the Preamble, reads:

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,[1] 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.

The General Welfare clause is a favorite of the more liberal population because it seems to give carte blanch authority to do whatever Congress wants to “promote the general welfare.” Of course, this cannot be the case, or else why include the Bill of Rights or any of the other provisions of the Constitution. In fact, during the founding of this country, many of the anti-federalists spent much time complaining about this exact clause for these very reasons. They essentially argued that the General Welfare Clause gave the Congress the power to exercise every power that they could claim was necessary for the “common defense or general welfare”. However, James Madison persuasively writes that this is not the case. He states:

“If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” He later added, “With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

Thomas Jefferson also states: “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

So, it seems clear from our founders most intelligent writers that the General Welfare Clause was never meant to enumerate powers given to the Congress, just lay out general powers. In fact, Congress is specifically limited to their enumerated powers and this makes sense. If we were to simply accept that Congress had any power that was necessary for the ambiguous “General Welfare” why have a Constitution in the first place? Just give Congress all power to do anything they want. The Founders, in their wisdom, knew this was not acceptable. So much for that clause.

Next is the “Necessary and Proper” Clause which reads:

The Congress shall have Power – 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.

The main argument here is that Congress has been granted power to make all laws that are “necessary and proper” for carrying out the law. However, what this clause really does it is authorizes Congress to make laws that are necessary to make the other clauses of Art. I effectual. Basically, this clause by and of itself cannot authorize national health-care, Congress would have to show that, in some way, National health-care itself is necessary and proper to execute some other power granted to Congress. For instance, they could try to argue that national health-care legislation is “necessary and proper” to “promote the general welfare”, of course we have already disposed of that so it become tautological. So, while the Necessary and Proper Clause is effective in different cases, it does not, by itself, grant Congress the power to just pass whatever legislation they want to.

In McCulloch v. Maryland (a seminal Con Law case) the court wrote:

“The clause is placed among the powers of Congress, not among the limitations on those powers . . . Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”

That last quote is telling to me. As clearly stated, if Congress tries to pass laws using the Necessary and Proper Clause that are not part of their enumerated powers, then the Court would have to find that the Act “was not the law of the land”.

Finally, the most difficult one is the Commerce Clause. Over the years (partly due to the New Deal era judges) the Commerce Clause has been expanded greatly. Almost to the point where anything that arguably could effect interstate commerce in any slight way is open to regulation by Congress. Art. I Sec. 8 states simply, “The Congress shall have power To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”.

The original intent of this clause was to prevent states from taxing goods that passed through their borders. It was meant to keep the free flow of commerce open and our economy strong. Even Madison wrote that the Commerce Clause was a power “which few oppose, and from which no apprehensions are entertained.” In other words, even the anti-federalists didn’t complain about this clause because it was clear on the face of the language that the power was meant to stop each state from running their own private economy and to encourage a national economy for the benefit of all. However, through a string of case law this has been turned upon his head to the point where the Commerce Clause is very nebulous and far reaching.

If progressives are going to win this battle this will be their primary tool to justify Congress’ action. It will be interesting to see how the justices come out, but we may come down to Kennedy casting the deciding vote again about whether we have national health care or not.

The bottom line is, if we are going to pass legislation that is going to have such sweeping ramification on our economy and way of life, it should be done through a Constitutional Amendment. This should be something that a clear majority of the people actually want. Right now it’s not even clear that a majority of people do want nationalized health-care, but Congress may try to force it through any way. A Constitutional Amendment ensures that the mandate of the people is met and that this is legislation that we can live with. We are talking about nationalized a huge percentage of our economy (I’ve read upwards of 20 percent). It will also change how we all receive care, how we view our relationship with the government in terms of privacy and liberty. To ram this through without clear moral support for the vast majority of Americans seems to be unconscionable.