"I do not share the writer’s confidence that national health care mandates are constitutional even under the modern Supreme Court’s altered version of the Constitution — but I recognize that legal scholars differ on this question. However, the claim that the Founding Fathers would have thought the Constitution allows Congress to impose health care mandates is little short of absurd."If you are interested in this issue, I recommend reading at least the piece by Natelson. Why? Because I think his analysis is the better analysis.
But, for myself, the constitutional issue should be much easier to answer. I suggest whenever you see an argument, like Amar's in this case, which goes on and on with this and that justification, you should be wary of the conclusion of constitutionality. The conceptual foundation of the Constitution does not require a long list of reasons to suppose any action by Congress is constitutional. In fact, I think the conceptual foundation of the Constitution requires just the opposite to argue an action is constitutional.
The Constitution is a document which grants specific and enumerated powers to Congress. The conceptual foundation of the document is the idea that unless there is a specific power granted to Congress that is directly written into the language of the Constitution, then the Congress does not, constitutionally, have the power to act as it wishes.
The enumerated powers of the Constitution can be found in Article 1, Section 8. There is a simple test of the constitutional question with respect to the health care reform bills, at least as far as I can understand the meaning of our Constitution. To see this consider some of the language in the enumerated powers clause of our Constitution:
So, when I ask whether the bills passed by the House and the Senate regarding health care reform are constitutional I'm going to read Article 1, Section 8 looking to find something that would be like the following: "Congress shall have the power to provide health care services or health care insurance." I think the constitution issue should be this simple and this straight forward. And, if the proponent of the conclusion of constitutionality has to offer more than this kind of straight forward analysis, then the conclusion of constitutionality should probably, in my view, be seen as incorrect.
The Congress shall have the Power . . .
- To borrow money . . . .
- To coin Money . . .
- To establish Post Offices and post Roads. . .
- To raise and support Armies. . . .
- To provide and maintain a Navy. . . .
Of course, the health care reform bills passed by the House and the Senate could become constitutional. How? The Constitution could be amended to say that Article 1, Section 8 now includes the following: "Congress shall have the power to provide health care services or health care insurance." Of course, Congress seems not to be interested in doing health care reform the constitutional way (to paraphrase Justice Oliver Wendell Holmes).