Once in a while I over estimate conservatives. Even in the official party of hate for science and reason Rep. Michele Bachmann (R-MN) represents such a low point, especially for a citizen over the age of 10 and a Congressional Representative, that I didn’t think her bizarre claim that health-care reform with the public option would be unconstitutional would get much traction. Then we had Rep. Virginia Foxx (R-NC) make the same claim. If it was required that Congress representative-elects take a quiz on the Constitution before they’re allowed to take office Michele and Virginia would be out of work ( work that happens to provide the highly subsidized health-care they claim is unconstitutional). Article I
Section 8. The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes..
Now we have some some conservative legal minds echoing Michele and Virginia only they’re marginally more clever,
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there.
Balkinization notes,
This sounds to me like a claim that the number of people who buy health insurance affects the ability of private insurance companies to sell health insurance at a profit. So again, why is it that failure to purchase health insurance does not affect interstate commerce?
Hey, David, Lee, let’s debate this one. In public. It would be fun. Really, it would. I’d love to defend the proposition that the New Deal is constitutional with you.
Rivkin and Casey are going to have to undue a lot of case law which has held up under numerous challenges to New Deal legislation such as Social Security, and the building and regulation of interstate highways ( Rivkin and Casey rest much of their argument on case law from 1918 and 1919). At the Foxx link Thinkprogress notes that given the chance to kill Medicare, conservative voted against it. Conservatism is a barely breathing corpse thriving on the hopped up BS of corporate fueled astroturf and Timothy McVeigh-lites. One easy way for Conservatives to pull the plug on what remains of their party is to advance legal arguments that would do away with medical care for the elderly and disabled. Tommothy Noah deserves credit for being ahead of the curve. He wrote on August 4, An inquiry into health reform’s constitutionality
Urbanowicz and Smith next reach for that perennial conservative favorite, the Fifth Amendment’s takings clause, which says the government may not take property from a citizen without just compensation. “Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances,” Urbanowicz and Smith write, “could be considered an arbitrary and capricious ‘taking.’ …”
But according to Akhil Reed Amar, who teaches constitutional law at Yale, the case law does not support Urbanowicz and Smith. “A taking is paradigmatically singling out an individual,” Amar explains. The individual mandate (despite its name) applies to everybody. Also, “takings are paradigmatically about real property. They’re about things.” The individual mandate requires citizens to fork over not their houses or their automobiles but their money. Finally, Amar points out, the individual mandate does not result in the state taking something without providing compensation. The health insurance that citizens must purchase is compensation.
Many conservatives have used this argument against Social Security for years. Social Security is not a retirement investment plan, its a form of insurance. We’re required to pay the taxes, but they’re returned to us as retirement or death benefits – merchants also benefit from spending of those benefits. The additional people insured by health-care reform would not be the only ones to receive benefits. Speaking of the commerce clause; doctors, hospitals, nurses, medical supply and pharmaceutical companies would also benefit.
The Long Goodbye 