Enumerated Powers: Article I allocates to Congress “[a]ll legislative powers herein granted,” which means that some legislative powers were intended to remain beyond Congress’s reach. The Supreme Court recognized and affirmed this fundamental principle from the earliest days of the republic, as Chief Justice Marshall famously observed: “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service. Democrats have pointed to both the general welfare taxing power and the commerce clause as possible justifications for the mandate, but as a recent Heritage Legal Memorandum details, neither justification withstands scrutiny.
5th Amendment: The Fifth Amendment of the U.S. Constitution reads in part: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Sen. Ensign will argue today: “The Democrats’ health reform bill would require an American citizen to devote a portion of income – his or her private property – to health insurance coverage. … But, Mr. President, if a Nevadan does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else, such as rent or a car payment, this new requirement could be a “taking” of private property under the Fifth Amendment.”
Racial Discrimination: On December 10th, the United States Commission on Civil Rights sent a letter to the Senate regarding racially discriminatory provisions in Obama’s health plan. The letter reads: “No matter how well-intentioned, utilizing racial preferences with hope of alleviating health care disparities is inadvisable both as a matter of policy and as a matter of law. … Ensuring that all Americans, regardless of race, have access to quality health care requires both creativity and hard-nosed attention to data. It also requires staying within the requirements of the Constitution. The current race-based provisions of the Senate Health Care bill display none of these qualities.”
Unequal State Treatment: Speaking to Fox News, Sen. Lindsey Graham (R-SC) described Sen. Ben Nelson’s (D-NE) deal to support Obamacare in exchange for a bailout Nebraska’s Medicaid costs as “disappointing, sleazy, unconstitutional.” Graham is not the only one examining Cornhusker Kickback. The Attorneys General of Alabama, Colorado, Michigan, North Dakota, South Carolina, Texas and Washington state are jointly investigating the deal to see if special treatment for only one state in the nation at the expense of the other 49 violates the Constitution.