The Constitution has no coercion clause
Thursday, Nov. 19, 2009 Share on Facebook
In 2006, long before there was an Obama administration determined to impose a command-and-control federal health care system, a young orthopedic surgeon walked into the Goldwater Institute in Phoenix, Ariz., with an idea. The institute, America's most potent advocate of limited government, embraced Eric Novack's idea for protecting Arizonans from health care coercion. In 2008, Arizonans voted on Novack's proposed amendment to the state's constitution:
Proponents were outspent 5-1 by opponents who argued, meretriciously, that it would destroy Arizona's Medicaid program, with which many insurance companies have lucrative contracts. Nevertheless, the proposition lost by only 8,687 votes out of 2.1 million cast, and Arizonans will vote on essentially the same language next November.
But does not federal law trump state laws? Not necessarily. Clint Bolick, a Goldwater Institute attorney, says, "It is a bedrock principle of constitutional law that the federal Constitution established a floor for the protection of individual liberties; state constitutions may provide additional protections."
In 1997, the U.S. Supreme Court held that under the Constitution's system of "dual sovereignty," states' "retained sovereignty" empowers them to "remain independent and autonomous within their proper sphere of authority." The court has been critical of the "federalism costs" of intrusive federal policies, and recently has twice vindicated state sovereignty in ways pertinent to Novack's plan.
In 2006, the court overturned an interpretation of federal law that would have nullified Oregon's "right to die" statute. The court said states have considerable latitude in regulating medical standards, which historically have been primarily state responsibilities.
In 2000, Arizona voters' endorsed an English immersion policy for students for whom English is a second language. Federal courts had issued an injunction against such policies because they conflicted with federal requirements of bilingual education. This year, however, the Supreme Court mandated reconsideration of the injunctions because they affect "areas of core state responsibility."
The court says the constitutional privacy right protects personal "autonomy" regarding "the most intimate and personal choices." The right was enunciated largely at the behest of liberals eager to establish abortion rights. Liberals may think, but the court has never held, that the privacy right protects only doctor-patient transactions pertaining to abortion. David Rivkin and Lee Casey, Justice Department officials under the Reagan and first Bush administrations, ask: If government cannot proscribe or even "unduly burden" -- the court's formulation -- access to abortion, how can government limit other important medical choices?
Democrats' health bills depend on forcing individuals to buy insurance or face severe fines or imprisonment. In 1994, the Congressional Budget Office said forcing individuals to buy insurance would be "an unprecedented form of federal action," adding: "The government has never required people to buy any good or service as a condition of lawful residence in the United States."
This year, the Congressional Research Service delicately said "it is a novel issue whether Congress may use the (Commerce) Clause to require an individual to purchase a good or service." Congress has the constitutional power to "regulate commerce ... among the several states." But a Federalist Society study by Peter Urbanowicz and Dennis Smith judges it perverse to exercise coercion under the Commerce Clause "on an individual who chooses not to undertake a commercial transaction." As Sen. Orrin Hatch, R-Utah, says, there is "a fundamental difference between regulating activities in which individuals choose to engage" -- e.g., drivers can be required to buy auto insurance -- "and requiring such activities" just because an individual exists.
House Majority Leader Steny Hoyer, D-Md., says Congress can tax -- i.e., punish -- people who do not buy insurance because the Constitution empowers Congress to tax for "the general welfare." So, could Congress tax persons who do not exercise or eat their spinach?
When asked whether any compulsory insurance purchases are constitutional, Speaker Nancy Pelosi was genuinely astonished: "Are you serious? Are you serious?" In 1803, in Marbury v. Madison, Chief Justice John Marshall wrote, "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written." He was serious.
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George Will's e-mail address is georgewill@washpost.com.
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While many argue over the level of Federal taxation in the country, only a small few (mostly in prison or headed there) argue that the Federal Government cannot levy taxes on individuals.
The requirement that every living US citizen purchase health insurance under penalty of law is not a tax. It is a Government mandate that citizens spend private capital on a particular good or service.
This strikes me as just another way for Federal "policy makers" to put their hands in our pockets. Another example. It would be great for Detroit / GM if their sales took off. How about a Government mandate requiring each licensed individual to purchase a US made automobile in the next five years? This doesn't impact the Federal deficit, it puts lots of Americans to work, sounds like a winner to me.
The Government already spends tax dollars on things I would prefer not to fund. I don't want them telling me how to spend the remainder.
- Jack, Keene
To Roger in Rochester
Obama is perpetuating the war, he promised to bring the troops home. Its been 10 months and they are still there. The should be home.
The Israelis, who are occupying territory they captured when they were attacked, not once, not twice but three times since 1948 have done no wrong. It is Hamas who has committed atrocities using their own civilians as human shields. and don't forget the 10 months of rockets being launched into Israel after Israel pulled out of Gaza.
Hey I'm all for affordable health insurance for everyone but not the way they are doing it. Why do they need a 1000 page bill? What are they trying to hide? This will bankrupt our nation.
- Don, Nashua
Robert in Deerfield
Neither you nor either political party are my parents. That honor goes to those who created the nation not those who seem to wish to tear it down along with freedom and personal responsibility it was founded on. At the moment the nation may be better off with a fence around Washington D.C. than along the border.
- Deb, Derry
Excuse me if I am missing something. We all pay for medicare, right? Right out of the old paycheck, right?
It is startling how the GOPers will gladly trot down the aisle with some hyper-expensive war that does NOTHING for the US but bleed us dry of money, pony up for all sorts of pie-in-the-sky fantasy pentagon programs like missile defense - for POLAND no less, & dump unknown tons of money into the hands of occupying Israelis committing war crimes while their Prime Minister is indicted for corruption.
But money for health care for wroking class Americans, paid out to American doctors and nurses right here at home, providing both jobs and better health? NO WAY, THAT'S A WASTE!!
PS - The rich in this country have to be laughing so hard at the working class that their sides hurt. War profits flooding in (wait until they have to replace all that equipment in Iraq) while working class GOP rednecks vociferously protect them from higher taxes. They have the right wing very well trained indeed.
- Roger, Rochester
The Republicans had no difficulty voting to force a feeding tube forced down Terri Schiavo's throat. I don't recall George Will editorializing against "required medical care" back then. The rich have medical care and 46 million others in the US don't. Obama and Democrats care about the 46 million. The rich, with friend George Will, can take care of themselves.
*** Editor's note: George Will opposed the federal legislation intervening in Terri Schiavo's case. ***
- e, londonderry
The tricky question here is should the Federal Government compel it's citizens to purchase a service or good based solely on that citizen's existence? Auto insurance is tied to the privilege of driving and is not needed if one does not drive.
Should the Government require all citizens to purchase gym memberships? One can argue this would address cardiovascular and obesity issues.
If a different administration comes to power could it perhaps require all citizens to purchase handguns to enhance the security posture of the average citizen?
Allowing our Government to force the purchase of Health Insurance may be a step down a path we may not want to take.
- Jack, Keene
The knowledge of George Will or that of Robert from Deerfield? Now that's a difficult decision. Hmmm?
- KC, Manchester
I get so giddy just watching the trans-formation of America. I'm trying to decide what kind of society I want America to resemble, though. Venezuela? Cuba? Yemen?
America was a one of a kind. Shed its' blood around the globe many times for those who were unable to defend themselves. Were there with aid when natural disasters struck. Has anyother nation been the first on the scene? Who will step up to the plate when we have become an impoverished nation?
Trying to eradicate poverty in America with gov't programs has made us poor. The vast riches that some believe we posess is an illusion.
Just look at our nation's debt. After we are dead and gone. our childrens' great-grand children will still be trying to pay off the debt we imposed upon them.
My question is for the deep thinker with foresight.
Any ideas or suggestions on what kind of society you want? Anyone?
- Michael, Manchester
Stop calling it health care reform. It is health insurance reform. Healthcare is not broken. We have doctors and hospitals anc you can get help if you need it.
The problem is how people pay for it. It is not fair or just that I should pay the same premium as a fat (sorry obese is more PC), smoking, drinking, partying, lazy, fastfood eater when I do not live anywhere near those lifestyles. They cost more to care for and have more health problems and shoudl PAY more.
What is next, gov't mandated renters insurance? Auto insurance (NH is cheap sicne we don;t have to get it, MA was very expensive when I lived there). Soon the gov;t will tell me what I can use my fun money for.
- CJ, Bedford
I spent most of my life in NH and miss living there. But after returning from Florida after being there for 3 years to be with my mother who was diagnosed with pancreatic cancer. When she died I could not afford to go home to Londonderry.
I am now stuck in the Peoples Republic of Massachusetts where a former governor signed into law that all must have health insurance or face fines and/or loss of tax deductions.
I had to leave two part time jobs that gave me a combined wage of $17/hr but had no health ins. so now I'm a janitor in a hospital full time at $12/hr for the health insurance. The fines in MA are 1/2 the cost of private health care covereage per month for every month of no coverage and loss of a tax deduction until compliance.
I really miss NH.
- Jay, Methuen, MA
Michael in Epping. Please don't suggest we send this monstrosity to the Supreme Court. There's a minor shortage of constitutional scholars on the Bench and I for one am not willing to take a chance on letting Sonia Sotomayor, Stephen Breyer or Ruth Bader Ginsburg attempt to interpret constitutional law on such a fundamental issue. Justices Kennedy and Stevens are a little scary sometimes too. Too much so to want them to be the deciding votes.
Be careful what you wish for.
- Ron, Manchester
The weasel worders are out this morning in force. The Constitution is a document that coerces everything. "Power to use force in gaining compliance." Will's problem is like that of the two year old child when its parent forces it to do something that the rest of society has decided is good for it like going to school or eating those vegetables. You can trot out Ayn Rand or some other looney but the adult world recognizes that there are constraints which enable benefits. That is just how it goes. We can argue about which things to constrain and who gets the benefit but at present we are talking about a healthcare system that doesn't work for you or me or the less advantaged. Just wait till you need it. Presto, immediate change in attitude. A liberal is a libertarian that has been diagnosed with cancer. And all this palaver from someone who can't even get the sense of the evidence he quotes about global warming.
- Robert, Deerfield
I have a solution to this problem: simply allow me, as a federal taxpayer, to have a US 'Health Care ID' card that would give me access to basic medical services, payed for by a universal Medicare system, funded by tax dollars. That way I wouldn't need the private insurance, as I would already be covered!
Unfortunately, the GOP machine is in full attack mode, scare mongering, propagandizing, and otherwise laying in the tracks to make sure that never happens, because as a US citizen I don't have a 'right' to decent health care.
As a result, we're left to choose between the lesser of many evils, and craft half-baked solutions like this one, which everyone knows is a work-around. The big question remains, however, and George hasn't answered it- who is going to pay for the uninsured mother who's baby is born two months premature, at a cost of a couple of million? Or the uninsured, self-employed carpenter who falls off a ladder and breaks his neck? Me? Who is going to pay?
- Dave, Sandwich
Judy, Bradford -- What if the hard-working family in your example doesn't get insurance, has a major (even minor) medical expense, and can't pay the bill? Then I, as someone who has insurance, gets to pay more (as I am doing now, according to how much my contribution will go up next year) for mine so that they can have theirs. Same result, unless you believe that they shouldn't be given care unless they can pay.
You know, it's funny, we have contractors from the UK who, when asked about their health care system, don't paint the negative picture that some over here do when arguing about a government option. they don't complain about their five weeks of vacation a year, either.
- Texter, Newfields
Mr. Will is correct - the federal government has no constitutional authority to compel citizens to purchase any commodity.
Obama, the celebrated "professor" of constitutional law, should know this.
- Tom, Campton
I want to lay around and grow fat and unhealthy and pound my employer-provided health care for constant complaints that have to do with my obesity and smoking. I want to deny gays marriage because it would ruin America, and no proof of that is needed just read the Bible. From my fat perch I want to deny half the population their rights to bodily privacy because zygotes and embryos are people. I say we must go kill'em there and everywhere because if we don't we'll have turbaned terrorists shooting up movie theaters here. I don't care how much the government spends on that, as long as the rich who provide me my job are left alone and tax free. That's it for now, I need to go pray for God to bless me with bounty. Life is wonderful!
- Terry, Keene
The point of the current discussion can only be: It's Constitutional if the Supreme Court says it's Constitutional. You need look no further than that ridiculous Pfizer/New London case to see that. (Thank you again, Justice Souter!) With Obama appointing a 'wise Latina' to the Court, and with more to come, you can rip up the Constitution and throw it away. It is what Obama says it is!
- Leo, Canterbury
Laughable George Will, you need to loosen the bowtie, it's apparently cutting off the blood to your brain.
When you offer a rock solid health care plan, with incentives for those who can't afford it, the problem will be handling all the people who want it, not those who don't. Even those uninsured who prefer private insurers will join in, because private insurers will lower costs to compete.
As for social control, the koolaiders want to keep gay people second class citizens so they can't marry, prevent women from exercising their Constitutional rights to have privacy with respect to their bodies, cram their awkward religiosity down the whole nation's throat, downgrade the justice system to include rendition and secret prisons, and saber rattle and make war in parts of the world they can't socially control.
No question about it, when it comes to social control, the GOP dead-enders far exceed a benevolent Democrat party trying to get the capitalist health care monkey off of everyone's backs.
- Tom Labrie, Rochester
Obamacare is an important step in the plan of the Democrats for total control of the lives of the American people. Once the people totally dependent on the Government, it is the end of the two party system.
- Fred, Keene, NH
No shock and Awe for me that the current political atmosphere in Washington will seek to control our lives by taking over health care. This is the same administration that printed up a trillion dollars in stimulus money and during a recession uses it as bribe money on both states seeking federal money and businesses seeking bailouts for their financial failures.
We have banks and businesses seeking to pay off their dept of stimulus money and the feds telling them they can't so the feds keep control of the institutions. Plus any state looking for federal money must sign away state rights to receive the money. In the private sector such a thing is called blackmail.
If you still don’t think the democrat party is about controlling society while claim to be protecting you, you are not paying attention. Not to worry though. If this fails they will learn by it and try again maybe with legislation and slowly strangle health care as they did the banking and lending institutions. That may mean Barney Frank and Chris Dodd get to move into health care management and do for it what they did for banking.
- Deb, Derry
Your work is insightful as always, George, but I am profoundly distracted about ANY possible linkage between my no-insurance rights and the "privacy" so celebrated in Roe v. Wade.
When Roe finally and deservedly goes down in flames, I don't wanna have to scramble to keep the Feds off my uninsured back.
So, please conjure up another path to the Promised Land, George.
I know you can do it ...
- Larry Gillis, Cape Coral FL
This should be good, pass the pop-corn. The knee-jerk Pelosi-care supporters are the same people who whined incessantly about President Bushs' alledged intrusions into private lives, yet they generally and openly support this monstrosity of a "health care" bill which actually does interfer in our lives ( unlike anything W alledgely did).
- Jeff, Goffstown
This Administration is so anti business and anti profit if you didn't know better you would think they were communists. They want the government to control health care. The same government who exposed Vietnam soldiers/people to agent orange. Who dropped atomic weapons in the desert and then force marched soldiers to the sight of the explosion to see what would happen to the soldiers. The same government that pays $600 for a hammer when you can buy one for $20. The same government that pays out $98 billion dollars in Medicade fraud. All this in the name of being fair and PC. Before any law is passed maybe it should go to the Supreme Court and find out if the Justices think its legal. This overeaching and confiscation of 1/6 of the economoy is dangerous. I just saw a video about health care reform. It was Ronald Reagon giving a speech in the 1950's about the dangers of government taking away our freedom of healtch choices. Funny some things never change.
- Michael King, Epping
Let me get this straight; what if a hard-working family doesn't have the money to buy the government's health insurance after they've paid all of their necessary bills merely to survive? The gov't can fine them or at worst imprison them? What has happened to our United States of America? Wake up People!
President Obama and the dems are hell bent on destroying our democratic way of life. Vote these people out before it's too late.
- judy, bradford
So they can just raise my income taxes, and offer me a tax deduction for health insurance?
Its not much different then me choosing not to carry a mortgage or have children.
- John Edward Mercier, Belmont
Thank you for letting Mr. Will note the open disdain Pelosi displayed for her Constitutional job description.
But our position won't prevail in the courts if we lose in Congress. Obama-care would define the health of the human herd as Washington's "sphere of authority," and the Supreme Court has given in to such expansions before. And as everything has health implications, the federal government would regulate everything, and the Constitution, whose "negative rights" Obama chafed at during the campaign, would now be just a quadrennial oath taken by people who hold it in contempt.
Mr. Will ultimately calls into question the entire "police power" by which government overrides our private decisions at gunpoint, hoping to dictate preferable outcomes.
- Spike, Brentwood NH