Health-Care Reform and the Constitution: Why hasn't the Commerce Clause been read to allow interstate insurance sales? September 15, 2009 article in the Wall Street Journal by Andrew P. Napolitano
Judge Napolitano discusses an issue being overlooked in the Health Care Reform effort. Does the federal government even have the constitutional power to regulate health services, particularly by requiring people to buy insurance, i.e., the "individual mandate”? The federal government has only specific enumerated powers in the Constitution, while the Ninth and Tenth Amendments reserve the remaining powers to the states and the people. The fact that states can require people to buy car insurance does not extend that power to the federal government. So, the federal government being able to require people to buy health insurance would be precedent setting. If the federal government can do this, are there any limits in the Constitution that remain?
Until I read this article, I did not understand the purpose of Michigan HCR004 and SCR004/SR17 (Michigan Sovereignty Under the 10th Amendment). Although not binding, they would send the message that we still take the Constitutional limits seriously – that we are a Republic, a limited government and not a democracy which allows tyranny by the majority. With recent statistics of 47% of Americans not paying any income tax, millions taking government handouts, and the strength of the public service unions, the power and the incentive to redistribute wealth from the producers in society will become overwhelming if there are no Constitutional limits.
Of course, this could be looked at as an exercise of the "taxing power", i.e., that this is nothing more than a tax imposed on individuals, which tax can then be avoided by purchasing the insurance. However, if this rationale holds, then anything can be required by the federal government, and this is certainly NOT what the founding fathers envisioned.