Conservative Principles Now

Senator Orrin Hatch (R-UT) addressed The Heritage Foundation yesterday on the unconstitutionality of congressional action that forces Americans to buy health insurance under Obamacare.

In Sen. Hatch’s opinion, that mandate would not pass muster under the Constitution, and it would be an entirely unprecedented action that is beyond the scope of Congress’ powers:

Make no mistake, requiring individuals to purchase a particular good or service, as these bills would do, would be boldly going where Congress has never gone before. Congress has regulated interstate commerce, but has not required that people engage in it. The Supreme Court has expanded Congress’ power to regulate activities that substantially affect interstate commerce, but not the requirement that people engage in those activities.

When Sen. Hatch speaks of Congress’ powers to regulate interstate commerce, he is referring to powers with their roots in the Commerce Clause, an enumerated power found in Article I, Section 8, Clause 3, of the Constitution, which says the U.S. Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

As Sen. Hatch noted, the Supreme Court has expanded the meaning of the Commerce Clause to allow Congress to regulate not only commerce itself (such as the sale of goods across state lines), but “activities that substantially affect commerce.”

For example, in the 1942 case of Wickard v. Filburn, the Court ruled that Congress has the power to set national quotas on how much wheat one grows on their own land for their own consumption. In the Court’s view, even that personal, local activity of producing and consuming wheat could affect prices and the market, therefore subjecting it to congressional regulation under the Commerce Clause.

However, Sen. Hatch pointed out that the Court’s interpretation limited Congress to regulating activities. If Congress were to mandate that Americans must buy health insurance, it would be entering into an entirely new realm of power and regulation:

Congress has regulated interstate commerce, but has not required that people engage in it. The Supreme Court has expanded Congress’ power to regulate activities that substantially affect interstate commerce, but not the requirement that people engage in those activities.

The effects of such a broad expansion of congressional power, Sen. Hatch said, would be far-reaching.

If Congress can require purchase of particular goods or services to help the economy, there was no need for the Cash for Clunkers program. There was no need for the Troubled Asset Relief Program or the other bailouts. Congress could tell people to purchase a certain car, invest their money in certain companies, or deposit what is left of their paychecks in certain banks. If there is no difference between incentives and mandates, between regulating what people choose to do and requiring that they do it, between activity and non-activity, then the Constitution provides no limits on the power of the federal government. And without the necessary condition of such limits, liberty itself is at risk.

Sen. Hatch said that there are constitutional means which Congress can use to increase health insurance coverage, but those methods aren’t being considered. And as for the unconstitutional tactics, Sen. Hatch pointed out that the American people stand firmly against them:

A national poll conducted last month found that 75 percent of Americans believe that requiring them to purchase health insurance is unconstitutional because Congress’ power to regulate commerce does not include telling Americans what they must buy.

To read more about the constitutionality of congressional mandates, check out The Heritage Foundation Legal Memorandum, “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional,” by Randy Barnett, Nathaniel Stewart and Todd F. Gaziano.

Debate continues on the Senate floor on the Patient Protection and Affordable Care Act of 2009 (H.R.3590), and the focus continues to be on Medicare and Medicare Advantage. While proposing spending cuts in one program to create another, the Senate leadership is claiming that all of these Medicare cuts are possible without cutting benefits or services in current Medicare programs, such as Medicare Advantage and Home Health Care.

Stabenow’s Medicare Advantage Amendment. Senator Debbie Stabenow (D-MI) proposed an amendment which would ensure that spending reductions to the Medicare Advantage program would not result in a reduction or elimination in benefits that enrollees would receive. Sen. Stabenow’s amendment passed 97-1.

This amendment is a curious, as well as popular. Its popularity may reflect the substance of the legislation. The reason: Senate Majority Leader Harry Reid’s (D-NV) bill includes $118.1 billion in cuts to the Medicare Advantage program. It’s hard to imagine how cuts of this magnitude would not affect benefits for enrollees of the program — now more than one in five seniors. Examining similar provisions in the giant House-passed bill, the Chief Actuary of the Centers for Medicare and Medicaid Services said comparable spending cuts to Medicare Advantage would “reduce MA rebates to plans and thereby result in less generous benefit packages.”

The Hatch Amendment on Medicare Advantage Cuts. Senator Orrin Hatch (R-UT) made a motion to commit the bill to the Senate Finance Committee to remove Medicare spending cuts, which would have guaranteed Sen. Stabenow’s promise to protect the Medicare Advantage program. Sen. Hatch’s amendment failed with a vote of 41-57.

The Kerry Amendment on Home Health. Senator John Kerry (D-MA) offered an amendment that the Senate bill would guarantee home health benefits that Medicare enrollees receive under title XVIII of the Social Security Act. The Kerry Amendment to guarantee these benefits was very popular. It passed 96-0.

The Johanns Amendment on Home Health. Senator Mike Johanns (R-NE) then offered a motion to commit the bill to the Senate Finance Committee to remove spending cuts to the same home health benefits that Sen. Kerry’s amendment seeks to preserve. The health care bill currently contains $42.1 billion in cuts to home health benefits over ten years. Sen. Johann’s amendment was defeated by a vote of 41-53.

Whitehouse Amendment to Preserve Social Security. Senator Sheldon Whitehouse (D-RI) offered an amendment to ensure that surpluses created by the health care bill in the Social Security trust fund and savings generated by the CLASS Act would be reserved for Social Security and the CLASS program, respectively. The Senate voted to preserve savings from these programs 98-0.

It is worth noting that the Senate bill delays spending until after revenue collection begins. In examining the CLASS Act provisions, the Congressional Budget Office says, “…the program’s cash flows would show net receipts for a number of years, followed by net outlays in subsequent decades.”

Thune Amendment on Entitlement Spending. Senator John Thune (R-SD) proposed an amendment which would remove the CLASS act altogether in order to eliminate new entitlement spending and limit government control over health care. Thune warned that Congress should not be creating more problems like those inherent in Medicare, which, like the CLASS Act, was also intended to be fiscally self-reliant on premiums and revenues collected by users of the program. Sen. Thune’s amendment was defeated by a vote of 51-47.

Kathryn Nix currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm