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A Project of The Annenberg Public Policy Center

Health Care Overhaul: Constitutional?

Q: Are the health care overhaul proposals that are pending in the House and Senate constitutional?

A: Legal experts agree that requiring citizens to buy something is a novel concept that has not been tested in the courts.


Could you factcheck this for me and others who are receiving it?


Michael Connelly of Carrollton, Texas is a retired Constitutional lawyer and has read the entire health care bill and has some comments, not about the bill, but about the effects on our Constitution. It’s a broader picture than just health care reform.

It’s time we sit up and pay attention; once this sort of thing happens, it will be irreversible. We have reason to be very afraid of what is happening.


Well, I have done it! I have read the entire text of proposed House Bill 3200: The Affordable Health Care Choices Act of 2009. I studied it with particular emphasis from my area of expertise, constitutional law. I was frankly concerned that parts of the proposed law that were being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.

To begin with, much of what has been said about the law and its implications is in fact true, despite what the Democrats and the media are saying. The law does provide for rationing of health care, particularly where senior citizens and other classes of citizens are involved, free health care for illegal immigrants, free abortion services, and probably forced participation in abortions by members of the medical profession.

The Bill will also eventually force private insurance companies out of business and put everyone into a government run system. All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals. Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.

However, as scary as all of that it, it just scratches the surface. In fact, I have concluded that this legislation really has no intention of providing affordable health care choices. Instead, it is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated. If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.

The first thing to go will be the masterfully crafted balance of power between the Executive, Legislative, and Judicial branches of the U.S. Government. The Congress will be transferring to the Obama Administration authority in a number of different areas over the lives of the American people and the businesses they own. The irony is that the Congress doesn’t have any authority to legislate in most of those areas to begin with. I defy anyone to read the text of the U.S. Constitution and find any authority granted to the members of Congress to regulate health care..

This legislation also provides for access by the appointees of the Obama administration of all of your personal healthcare information, your personal financial information, and the information of your employer, physician, and hospital. All of this is a direct violation of the specific provisions of the 4th Amendment to the Constitution protecting against unreasonable searches and seizures. You can also forget about the right to privacy. That will have been legislated into oblivion regardless of what the 3rd and 4th Amendments may provide.

If you decide not to have healthcare insurance or if you have private insurance that is not deemed "acceptable" to the "Health Choices Administrator" appointed by Obama there will be a tax imposed on you. It is called a "tax" instead of a fine because of the intent to avoid application of the due process clause of the 5th Amendment. However, that doesn’t work because since there is nothing in the law that allows you to contest or appeal the imposition of the tax, it is definitely depriving someone of property without the "due process of law.

So, there are three of those pesky amendments that the far left hate so much out the original ten in the Bill of Rights that are effectively nullified by this law. It doesn’t stop there though. The 9th Amendment that provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The 10th Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people." Under the provisions of this piece of Congressional handiwork neither the people nor the states are going to have any rights or powers at all in many areas that once were theirs to control.

I could write many more pages about this legislation, but I think you get the idea. This is not about health care; it is about seizing power and limiting rights. Article 6 of the Constitution requires the members of both houses of Congress to "be bound by oath or affirmation" to support the Constitution. If I was a member of Congress, I would not be able to vote for this legislation or anything like it without feeling I was violating that sacred oath or affirmation. If I voted for it anyway, I would hope the American people would hold me accountable.

For those who might doubt the nature of this threat I suggest they consult the source. Here is a link to the Constitution:

And another to the Bill of Rights: http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

There you can see exactly what we are about to have taken from us.

Michael Connelly
Retired Attorney, Constitutional Law Instructor
Carrollton, Texas


We’ve received dozens of queries from readers about this chain e-mail, and especially about its claims that the House health care overhaul bill, H.R. 3200, is unconstitutional. That’s a question judges get paid to settle, so we can’t answer that definitively. But we can lay out the facts and the arguments.

Michael Connelly, the "retired attorney" who penned the diatribe included in the e-mail, makes a number of other claims about the bill, too, such as that private insurance companies will be forced out of existence. We’ll deal with those briefly at the end.

Can Congress Do This?

Connelly begins his constitutional objections by calling the bill "the most massive transfer of power to the Executive Branch of government that has ever occurred." He claims that there’s nothing in the "text of the Constitution" giving Congress the authority to regulate health care. He’s right that the document doesn’t specifically grant Congress that power, but that’s a very narrow reading of the words.

Other lawyers who believe, or don’t believe, that Congress has the authority to regulate health care have engaged the argument more cogently. The dispute hinges mainly on differing interpretations of the commerce clause of the Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Writing about the Clinton administration’s proposed effort to overhaul health care, the Justice Department’s Office of Legal Counsel said in 1993 (with quotes from a 1940 Supreme Court decision):

Justice Department Office of Legal Counsel, 1993: The American health care industry is one of the largest and fastest growing segments of the American economy, and it has the most direct and crucial impact on the lives of all Americans. Spiralling health care costs and inequities in the provision of health care services have an immediate and massive effect on the national economy and thus upon interstate commerce. As a result Congress unquestionably possesses the power "to deal directly and specifically" with health care in order to obtain "social, health [and] economic advantages" for the American people.

Since the OLC memo was written, there have been a couple of important Supreme Court decisions striking down congressional statutes for being insufficiently grounded in the commerce clause: One law banned the possession of firearms in the vicinity of schools, while another gave victims of gender-motivated crimes the right to sue their attackers in federal court. But the activities being regulated by those laws were not as clearly economic as the purchase and delivery of health care.

The Right to Buy Insurance

Critics argue particularly strongly against the requirement in health care legislation pending in both the House and Senate that nearly all citizens buy health insurance. A counter-argument is that the success of the whole systemic overhaul depends on the individual mandate being part of the scheme, meaning the requirement is authorized by the commerce clause. But the uncertainty of this approach was voiced by the Congressional Research Service, which recently wrote (as reported by the New York Times):

CRS: Whether such a requirement would be constitutional under the commerce clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.

Another argument is made by critics that the government can’t make an individual buy something just because he or she exists. The "economic liberty" argument harkens back to the early 1900s, when the Supreme Court, in Lochner v. New York, threw out a New York law limiting the number of hours per day that a baker could work. The court said such regulation amounted to "unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract." But the Lochner era had moderated by the late 1930s, and legal experts consider the current Supreme Court unlikely to produce a majority in favor of reverting to early 20th century interpretations in this area. Mark Hall, professor of law and public health at Wake Forest University’s law school, writes that there is no fundamental right to be uninsured. "The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke constitutional protection," he says.

Hall: Under the Due Process Clause [of the 5th Amendment], no Supreme Court decision since 1935 has struck down any state or federal legislation for infringing economic liberties, and any such action would be radically inconsistent with current constitutional doctrine.

Hall also notes that the Takings Clause (which is also found in the 5th Amendment, and prohibits the government from taking private property for public use without "just compensation") might form the basis of a challenge, but writes that it’s not at all clear that mandating a private purchase constitutes a "taking."

Democrats in the House and Senate have framed the mandate as a tax provision, which might have the effect of helping the bill dodge some of the constitutional showdowns. After all, lawmakers have the power "to levy taxes and spend funds" for the "general welfare of the United States." In the House bill, the amount is a percentage of income, with some adjustments. In the Finance Committee version, it is a flat fee.

But David Rivkin Jr. and Lee Casey, lawyers who served in the Reagan and George H.W. Bush administrations, say that calling the fee a "tax" is "congressional trickery" and that the levy is "clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power." They add that "a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress’s constitutional power will present the question whether there are any limits on Congress’s power to regulate individual Americans."

Republicans in some states have moved to try to outlaw the individual mandate, saying the federal government is overreaching its authority. But even some legal thinkers who question the constitutionality of health insurance mandates believe the states’ rights argument would make a weak case.

We may find out. There’s little doubt that if the health care legislation passes and requires citizens to buy health insurance, it will be challenged in court. The final pronouncement may well be up to the nine justices who preside in the chamber right across the street from the Capitol.

P.S. The Kitchen Sink

Oh yes, almost forgot. Connelly also spools out a list of evils supposedly caused by the bill, providing support for none of them. We’ve dispatched many of these assertions before. He claims that the bill provides for:

  • "…rationing of health care," especially for seniors. That’s false, as we’ve explained many times.
  • "…free health care for illegal immigrants." Actually, it prohibits illegal immigrants from getting federal subsidies for their care. They could still get care at any hospital emergency rooms that would treat them, which is true currently, too.
  • "…free abortion services." It’s true that private insurance purchased with the help of federal subsidies could cover abortions, as could a proposed "public option" plan run by the government. But neither would be free. The bill also says abortions would have to be paid for with money from policyholders’ premium payments, and not taxpayer money.
  • "…probably forced participation in abortions by members of the medical profession." That’s wrong. H.R. 3200, the bill Connelly is writing about, continues "conscience" provisions in current law that allow health care workers to decline to provide abortions.

As for Connelly’s assertions that the bill will "eventually force private insurance companies out of business" and "put everyone in a governrment-run system," they are Connelly’s speculation, and there is nothing in the bill to that effect. Likewise the claim that "ultimately" all personal health care decisions will be made by "federal bureaucrats." Connelly also says that "hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled." That too is conjecture. To some degree, that’s what happens today under Medicare, though Connelly doesn’t mention it. The bill wouldn’t take it beyond that program.

– Viveca Novak


Dellinger, Walter and H. Jefferson Powell. "Constitutionality of Health Care Reform." Office of Legal Counsel, U.S. Department of Justice. 29 Oct 1993.

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381(1940).

United States v. Lopez, 514 U.S. 549 (1995).

United States v. Morrison, 529 U.S. 598 (2000).

Lochner v. New York, 198 U.S. 45 (1905).

United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944).

Hall, Mark. "Legal Solutions in Health Reform: The Constitutionality of Mandates to Purchase Health Insurance." O’Neill Institute for National and Global Health Law, Georgetown University.

Rivkin, David B., Jr., and Lee A. Casey. "Mandatory Insurance is Unconstitutional." The Wall Street Journal. 18 Sept 2009.

Davey, Monica. "In Some States, a Push to Ban Mandate on Insurance." The New York Times. 29 Sept 2009.

Seelye, Katharine Q. "A Constitutional Debate Over a Health Care Mandate." The New York Times. 26 Sept 2009.