Brian’s Column: Obamacare and the Constitution

“You don’t have the power, Droneboy!”

Many of us Apollo 13 fans remember the exchange between the young lead engineer played by Loren Dean and Gene Cernan (Ed Harris) during heated discussions about how to get the astronauts of that mission back to earth safely. Basically, the plans everyone had for moving and navigating the ship, maintaining radio communications, powering the instrumentation, hydraulics, lights, and life support, etc. presumed an amount of power that simply wasn’t there… i.e. “we don’t have the power, Gene!”

Enumerated Powers

Instead of using power in an engineering sense, let’s look at it in terms of political wherewithal to “get things done.” Keep in mind that political power, that is government power, only “gets things done” by force. Think for a minute what the government uniquely brings to the table of any project. Right, that’s it: people can breathe and tie their shoes, raise crops, conduct large productive enterprises, take care of themselves and their families, etc. without any coercion whatsoever. When government inserts itself, it means that someone is pointing a gun at someone else’s head(s).

Here’s how the Father of Our Country put it:

Government is not reason, it is not eloquence, it is force; like fire, a dangerous servant and a fearful master. — George Washington

With government you can’t “Just Say No!” Or you can, but then the government robs you of your possessions, hauls you off to jail, and kills you. The attribute of coercion that attends all government action is the reason the founders framed the Constitution.

The Constitution is not neutral. It was designed to take the government off the backs of the people. – Justice William O. Douglas

In other words, the reason for the Constitution is to place a severe restriction on government power, to act as a protection of the people from the excess of that power. Accordingly the document spells out only specific powers to the federal government.

  • By the Eighth Amendment, the federal government has no power that is not specifically identified in the Constitution.[1]
  • And by the Ninth Amendment, the people have all other rights/powers not specifically acknowledged in the Constitution.

So if the activity ain’t in here, the government doesn’t have the power to engage in it. Is there a clause in the Constitution granting the federal government a power to fund or authorize a national system of health care? Nope. Not even close. Not even to provide handkerchiefs for runny noses. Historically, some states have assumed an economic role in the broad realm of “health care,” but not the feds… at least not Constitutionally.

I’m going to take the liberty to excerpt extensively from an article that came across my desk courtesy Mr. Dean Hazel, who had seen it on the Price of Liberty Website. It provides the full and, to my mind, conclusive argument that all this discussion of federal intervention in health care is pointless: “We don’t have the power.”

Excerpts from:
The Constitution does not Grant the Federal Government
the Authority to Establish a so-called National Health Care Program

By Robert Greenslade © Nitwit Press

Stop debating the merits/details of a usurpation of power

Opponents of the proposed health care plan need to stop debating the merits and details of this health care scheme and focus on the core issue—the Constitution does not grant the federal government the authority to establish this program within the 50 united States.  Period end of the debate.  When the American people do not oppose federal usurpations of power on constitutional grounds, they validate the power grab because the debate is reduced to a discussion of the details and constitutional questions are ignored or become secondary considerations.

Let me make this point by way of example.  Let’s say you have a 17-year-old son who just got his driver’s license and you tell him he does not have permission to drive your car under any condition.  Then, the following Friday night he asks what time you want him to return your car after his date with the new girl in math class.  Would you engage him in a debate over the details or would you shut down the debate by reminding him that he was not authorized to use your car in the first place?

The Constitutional separation of power is key

The Constitution, contrary to popular belief, established a separation of power between the States and their federal government.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.

The health care bill, any way you cut it, violates this principle and is fatally defective.  No law passed by Congress can change this principle.  No delegated power in the constitution can be invoked to circumvent this principle.  This is the key.  Everything after this is simply a debate over the details of another attempt by the federal government to usurp power.

Congress will ignore this Constitutional principle

Since Presidents and members Congress, irrespective of party, have a track record of trashing the Constitution except when it is politically expedient, we can count on them to ignore this constitutional principle, once again, and move forward with their unconstitutional health care legislation.  Thus, I will discuss some of the ways they will attempt to justify their power grab and provide some additional nails to help seal the health care legislation in the unconstitutional coffin where it belongs.

The Massachusetts Plan is the Model

In 2007, the State of Massachusetts became the first State in the Union to require its residents to be covered by health insurance.  Under this law, all uninsured adults, who could afford insurance, were compelled to purchase some kind of health insurance or face monetary penalties.  This “buy insurance or else” legislation is patterned after the State’s auto insurance law that requires all operators of a motor vehicle to be covered by insurance.

Apparently, members of Congress who have been unable to come-up with a constitutional basis for their proposed legislation, thought using a state car insurance model would trick the American people into believing the federal government was granted the power to compel them to have health insurance.  This deceptive tactic is working according to plan because it has shifted scrutiny away from their lack of authority to the specific details of the plan.

Natural rights and the power of contract

In the Declaration of Independence, the Founders acknowledged that people have been endowed by a creator with certain unalienable rights and these rights exist independent of government or a written constitution.

Among the unalienable or natural rights of the American people is the unlimited right of contract.  This means you can choose to enter or not enter into a contract.  In order for a contract to be valid, it must be a voluntary act on the part of the parties.  In the normal course of life, you cannot be compelled under threat or coercion to enter into a contract with anyone —including government.

Government cannot compel you to engage in a contract

When you take out an insurance policy of any kind, you are entering into a contract with the insurance company.  The proposed health care law, irrespective of how it is couched, is an enter into a contract or else proposal.  In essence, the federal government is putting a gun to the heads of the American people and saying sign on the dotted line and secure heath insurance based on the standards we set or suffer the consequences.  Not only is this a compelled contract, but the federal government is setting the terms and conditions for the validity of the contract.  If the federal government had the authority to exercise this type of power over the American people, then freedom and liberty would cease to exist because the flip side of the coin is the power to prohibit you from engaging in a contract.

The Preamble to the Constitution

I have read and heard people attempt to cite the word “welfare” in the preamble of the Constitution to justify their belief that the federal government was empowered to enact health care legislation.  There are 2 problems with this assertion, First, the word “welfare” was copied from the Articles of Confederation and is derived from the words “well” and “fare” and means a “state of faring well” or “well being.”  When the Framers used the word welfare, they were using it in this context.  They were not referring to government social programs.  These programs were virtually unknown to the Framers and would have been classified, in the language of the day, as a form of poor relief.  Second, the preamble is an introductory provision that does not grant the federal government any legislative power.  Thus, any attempt to use the preamble is a ruse.

Taxing and Spending Clause (Article I, Section 8, Clause 1)

Since taxation is a component of the health care plan, Congress could invoke the taxing and spending clause in an attempt to justify the plan.  Congress’ power to tax and spend is found in Article I, Section 8, Clause 1 of the Constitution.  This Clause grants Congress the power: “To lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defense and general Welfare of the United States.”

Pursuant to this Clause, Congress can only impose taxes for three purposes.  First, to “pay the debts…of the United States.”  This provision was inserted, primarily, to give the federal government the ability to extinguish the existing debts of the United States and was not intended to grant Congress the discretionary power to dream-up ways to incur new debts.  Second, to “provide for the common Defense…of the United States.”  This provision enumerates the primary purpose of the federal government and grants Congress the power to raise the needed revenue.  Third, to “provide…for the general Welfare of the United States.”  Since health care has nothing to do with paying the debts or providing the common defense of the United States, that only leaves the general welfare provision as the possible basis for the health care plan.

The common definition of the general welfare phrase, as used by the Framers in the taxing clause is: “the whole group’s well being.” Since the general welfare phrase is annexed to the words “United States,” the whole group being referenced is a group of States called the “United States of America.”  Thus, this Clause grants Congress the power: “[t]o lay and collect taxes to provide for the well being of the States in their united or collective capacity.”

Unless the States agreed to unite for the purpose of providing health care through the limited powers delegated to Congress, and they did not, the federal government lacks the constitutional authority to invoke the taxing and spending clause because the States are not united outside of the delegated powers.  Outside of the delegated powers each State is a separate political entity.

The Commerce Clause (Article I, Section 8, Clause 3)

Since the Commerce Clause has been perverted by the federal judiciary to expand federal regulatory power beyond the intent of the Framers, there is a good chance Congress will attempt to use this provision in whole or in part to justify the health care legislation.

The purpose of the words “to regulate commerce… among the several States” in this Clause was to insure the free passage of goods between the individual States.

The Commerce Clause granted Congress the power to make regular, or normalize, commerce between individual State and individual State.  It did not grant Congress the power to control individuals or private business engaged in commerce.  This fact is substantiated by the 13th Amendment passed in 1865 (banning slavery), the 18th Amendment passed in 1919 (banning intoxicating liquors), and the 21st Amendment passed in 1933 (repealing the ban on intoxicating liquors).  All of these amendments involved commerce, yet Congress realized that it took a constitutional amendment before it had the power to legislate in these areas.

Under the umbrella of the Commerce Clause, the federal government is attempting to obliterate the system of limited government established by the Constitution and seize control over every aspect of human existence in these United States.

Even if this Clause granted the federal government the broad power it now asserts, Congress cannot use this Clause to compel someone to engage in interstate commerce. By the same token, Congress cannot negate the right of contract by forcing someone to engage in a contract under the banner of regulating interstate commerce.

The Necessary and Proper Clause (Art. I, Sect. 8, Clause 18)

This provision grants Congress the 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 purpose and extent of this clause was put in simple language by George Nichols in the Virginia Ratifying Convention of 1788:

The committee will perceive that the Constitution had enumerated all the powers which the general government should have, but did not say how they were to be exercised.  It therefore, in this clause, tells how they shall be exercised.  Does this give any new power?  I say not.  Suppose it had been inserted, at the end of every power, that they should have power to make laws to carry that power into execution; would that have increased their powers?  If, therefore, it could not have increased their powers, if placed at the end of each power, it cannot increase them at the end all.  This clause only enables them to carry into execution the powers given to them, but gives them no additional power.

Members of Congress have perverted this Clause by asserting that it grants them the power to make any law they determine is “necessary and proper” irrespective of whether it has any relationship to the actual powers granted to the federal government by the Constitution.  As shown above, this Clause is a benign power that does not constitutionally expand the legislative powers of Congress.

In addition, the separation of power between the States and their federal government negates this assertion because the public health falls under the heading of powers reserved to the States.  Thus, even if members of Congress had the power to dream-up legislation they determine is “necessary and proper,” which they do not, the fact that federal power is confined to foreign affairs and relations between the States [federal affairs] would exclude health care.  The States are perfectly capable, as the State of Massachusetts has proved, to make decisions concerning health care.

Note: If health care fell under the heading of powers granted to Congress, then where did Massachusetts get the power to establish their program?


The federal government only exists within the confines of its foreign and federal powers.  Thus, the enumerated powers delegated to the federal government by the Constitution are also confined to this sphere of powers.  This means Congress cannot, from a constitutional perspective, invoke its legislative powers to negate or circumvent this constitutional separation of power.  Any attempt to do so is, in the words of Justice Story—“a premeditated usurpation of authority.”

Thank you Robert and my new friends over at the Price of, especially Susan Callaway (MamaLiberty), the editor there who gave me dispensation to so extensively excerpt. Robert includes a great deal more of legal interest in his full column on the subject of the specific (lack of) Constitutional authority for establishing “a so-called National Health Care Program.”

“So What Would You Do, Brian?”

Briefly, I’d like to respond here to an oft-heard question, usually formed in the nature of an accusation: “So, Mr. Smartypants Libertarian Guy, we know what you wouldn’t do: you wouldn’t have the state involved in any aspect of health care… or much of anything else dealing with the ‘welfare’ of people. What does your system for health care look like?” Too many times, a query such as this—mostly coming from our ‘liberal’ friends—shuts down the hapless advocate of liberty, who feels a guilt for not caring enough to have worked out a comprehensive, foolproof system.

The Ice Cream Solution

Here’s the best response I’ve developed to date, which a) effectively repudiates unearned guilt, b) elucidates the nature of economic freedom, and c) provides a genuine foundation for a solution to the “problem” of health care… retirement, poverty, and so on: the Ice Cream Solution.

Let’s say the general consensus among our peers is that ice cream is a hugely beneficial product that millions of human beings want to enjoy on a regular basis. Further, let’s assume it is demonstrable that lacking ice cream, people will live lonely, bitter lives… or at least lives not nearly so fulfilled as “we” concerned citizens know these lives can be. Finally, ice cream technology is relatively new, hence, scarce, which makes it only available to the better-off.

Thus, the problem:
“We” need affordable ice cream for everyone who needs it.

I think you can see where I’m going with the parable. Any non-comatose person with a social conscience recognizes that the best way to deliver ice cream to the public is to stand back and let it happen naturally. Private ice cream businesses—for profit or relying on charitable giving—figure it out based on the actual demand (reflected in what is known as a price), and there will be competition to better serve the ice cream consumers at the lowest price with the assortment of quality and features the consumers want.

As a government, “we” don’t need to do anything, because “we” don’t know the slightest thing about ice cream: how to make it, who wants it, what flavors, what styles, health risks, obesity factors, collateral damage… nothing. So if “you” as a “concerned group of citizens wanting affordable ice cream for everyone” truly want the best possible outcome—remember, utopia is never an option, some poor schmuck is going to get vanilla when he wants chocolate, and some Biafran children in remote jungles will get no ice cream whatsoever—then you’d best sit on your hands and get out of the way. Laissez faire.

However, if you as an individual want ice cream, then you figure out a way to obtain it, either by making it yourself, or buying it from someone else—and this is key—at a price you are willing to pay. The more and better ice cream you want, the higher that price will be, and the stronger signal (combined with signals from others who want to promote ice cream production in any number of humanly interesting, completely voluntary ways) is sent to those who can and will produce ice cream. [Production being another key concept in the solution to getting something we want to consume.]

SunFLOWerAs Preston Tucker said, “It’s the [liberating] idea that counts.
The rest is just machinery.”


[1] The exclusion of powers not specifically granted is why, in order to establish federal prohibition of alcohol, the 18th Amendment had to be passed. [Because judicial thinking had decayed so thoroughly in the second half of the 20th century, somehow, federal prohibition of “drugs” came to pass without a Constitutional amendment.

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