The House and Senate have passed their respective versions of the legislation to take over the healthcare system, and a common bill is being hammered out, once again behind closed doors. The essential elements that we know will be in the final product are bad policy for America and, perhaps worse, a threat to liberty itself. The courts may have to enforce the constitutional boundaries that Congress has ignored.
This legislation presents at least two categories of constitutional problems. The first includes provisions that affect individuals and businesses. The mandate that individuals obtain health insurance, for example, would be the first time in American history that Congress has required all Americans to purchase a particular good or service. Nothing in the Constitution gives Congress that much power.
The Constitution gives Congress the authority to regulate interstate commerce, and the Supreme Court has expanded that power to include regulating activities that substantially affect interstate commerce. But the courts have never upheld, and Congress has not yet tried, requiring people to engage in economic activity. In a national poll conducted by the Polling Co. in November, 75% of those who responded believe that this insurance mandate is unconstitutional. And they are right.
The legislation would also impose a steep excise tax on insurance plans with high premiums -- the so-called Cadillac plans. It would, however, set different premium thresholds for triggering the tax in different states, so that the same plan with the same premium would be taxed in some states but not in others. The constitutional problem is that, under Article 1, Section 8, all such excise taxes must be "uniform throughout the United States," which the Supreme Court says requires that they must have the same force and effect wherever the tax is in force.
Some provisions of the Constitution may be difficult to understand, but it seems obvious that applying a tax differently is the opposite of applying it uniformly.
The other category of constitutional concern is that this legislation would undermine the sovereign status of the states in our system of government. Federalism, like the separation of government power into different branches, is a critical means of limiting government power in order to protect liberty.
The proposed legislation imposes numerous mandates on the states, including the requirement that they establish health benefit exchanges to administer and regulate this new federal healthcare system. The Senate bill goes even further, warning that if states do not comply, the secretary of the Department of Health and Human Services will step in, establish and run these exchanges. In other words, Washington is ordering states to pass legislation and issue regulations to carry out a federal program.
This would reduce the states to little more than subdivisions of the federal government, and the Supreme Court could not have been clearer in condemning such a scheme. In the 1992 case of New York vs. United States, it held: "The federal government may not compel the states to enact or administer a federal regulatory program." In Printz vs. United States (1997), the court was even more firm, "categorically" reaffirming that principle and adding that "state legislatures are not subject to federal direction." What part of that constitutional prohibition does Washington not understand?
These are just some of the constitutional defects with this legislation that affect both individuals and states, and litigation over these and other issues may well follow soon after this legislation becomes law. The attorneys general in several states, for example, intend to file suit if what has become known as the "Nebraska compromise," which permanently exempts Nebraska from paying Medicaid costs that other states must pay, becomes law.
Liberty requires limits on government; it always has and it always will. America's founders knew this and built limits into the system of government they established, including a Constitution that delegates enumerated powers to the federal government. By ignoring those constitutional limits, this healthcare takeover legislation threatens our liberty. The great cause of defending that liberty must continue.
Orrin G. Hatch is the senior U.S. senator from Utah. Mark Shurtleff is the attorney general of Utah.