Senate Health Care Bill Also Lacks Constitutional Authority
Before the House of Representatives had even released their health care bill a few weeks ago, I had written my Congressman explaining that all 5 of the health care bills being written and re-written in the Congress lacked Constitutional authority. One of the reasons I knew this was the case was that I knew the Congress would attempt to use its Article I, Section 8 enumerated power to regulate commerce. I wrote my Congressman in part saying:
But I know others have argued that if it is not a power that exists under the “general welfare” clause, then it certainly is a power derived from the commerce clause of the enumerated powers. To which, I consult those same Federalist Papers, but once again upon reading several of the Federalist Papers, <sic> the arguments seem to indicate that some of the States were participating in unfair trade practices with each other at the time of the drafting of the Constitution. Therefore, the commerce clause was included as an enumerated power in order to allow the Federal Government (i.e. the Legislative Branch) the power to make regular commerce between the States. And when I think of the enumerated power of making commerce regular between the States and how that relates to health care legislation, I conclude that the Constitutional power seems to lend itself to allowing private Insurance companies to provide their health insurance products across State lines [but not compel citizens to buy said products]…
So sure enough when I began reading the health care bill now coming out of the Senate, we find the following commerce clause citation beginning on page 320 of the legislation:
(1) IN GENERAL.—The individual responsibility requirement provided for in this section (in this sub section referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).<snip>
(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following:
(A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.
Let’s pause right there and see what the Senate is saying. Leave it to liberal Democrats to take the immediate leap from having the ability to regulate commerce between the States to result in their now new found supposed power to compel the purchase of what they have decided to regulate. I should at least pause here and say that at least the Senate unlike the House of Representatives tried to find the Constitutional authority to compel individuals to purchase health care. The House Bill (HR 3962) did not bother to attempt to seek or articulate Constitutional authority. Never before in the history of our Country has a citizen of the United States been required to make a private purchase or face a tax. So let’s look further into the bill and see what the consequences will be for the Senate’s new found power to regulate health insurance commerce.
First the Senate attempts to show us that they are serious about their Constitutional authority to require us to purchase health care insurance by citing a Supreme Court case. On page 324 of the bill, you will find the following:
(3) SUPREME COURT RULING.—In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.
But once again, they make a major leap from being able to regulate insurance as interstate commerce and then compelling a United States citizen to purchase health care. And they make this giant leap by immediately following the paragraph cited above with the following paragraph:
IN GENERAL.—Subtitle D of the Internal Revenue Code of 1986 is amended by adding at the end the following new chapter:
I will spare you the legalese of the next few sections, but it essentially says that beginning in 2013 (conveniently after the next Presidential election), all individuals and any qualifying dependents of said individuals will be required to provide “minimal essential coverage.” Failure to do so will result in a penalty. But what will that penalty be? Well it takes them several pages to detail the penalty, and they certainly are incapable of using clear and concise language, but here is the convoluted section where they get to the penalty you will pay. And when they say penalty, they really mean a federal income tax as stated on pages 325 and 326:
(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c).<snip>
(c) AMOUNT OF PENALTY.— (1) IN GENERAL.—The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1⁄12 of the applicable dollar amount for the calendar year. (2) DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends. ‘‘(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph (1)— ‘‘(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750.
(B) PHASE IN.—The applicable dollar amount is $95 for 2014 and $350 for 2015.
Now if that was all perfectly clear to you, then congratulations, you too can become a U.S. Senator. Yes it is clear that you will pay $750.00 by the year 2016, but it really does not matter because the United States Congress has no authority to tax a United States Citizen for not making a private purchase. The authority to regulate commerce between the States does not allow the government to add an income tax for failure to make a private purchase.
Congress’ authority to tax an individual’s income comes from the XVI Amendment to the U.S. Constitution. The XVI Amendment to the U.S. Constitution states in full the following:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
As I have argued before, if the members of Congress would have simply taken a basic accounting class, they would be familiar with the concept of a balance sheet that features both incomes and expenses. The XVI Amendment above clearly gives them the right to tax incomes, but it certainly does not grant them the power to tax expenses. Health Insurance is an expense. I don’t know how to describe this to the Congress because they seem to have such a difficult time understanding this concept. When you pay for something, in this case health insurance, it comes out of the expense column of the budget. The last time I checked the health insurance companies do not pay you and then give you health care as an income item on a balance sheet would require. But maybe the Congress does not understand this concept because they never actually have to pay for anything, so they don’t view payments for things as expenses hence our 12 trillion deficit. Maybe if we could get them all to take an accounting class we could solve two problems: 1)show them they have no Constitutional authority to compel a U.S. citizen to purchase health care and 2)solve our country’s massive deficit as they may start to understand expenses eventually have to be paid. Oh well, we can dream can we not?
Once again the United States Congress has overreached on its Constitutional authority attempting to set another precedent against our Constitutional rights and protections. I know that I’ll be calling both of my Senators tomorrow, and I encourage all of you to do the same. If we do not adamantly insist that our Constitutional protections be adhered to, we will find ourselves one day without any Constitutional protections at all. I just hope that day has not already arrived, and that it is not too late.
Update: You can find a more comprehensive article on this same issue that I wrote for The Post & Email. I based the article for The Post & Email from this piece and is entitled Congress Hath Not the Authority.