The Defects of Obamacare

April 9, 2010 - 11:26 ET

Lies the Government Told You: Myth, Power, and Deception in American History By Andrew P. Napolitano

There are four constitutional defects in the healthcare law recently signed by President Obama.

The statute has many odd parts to it that are also subject to challenge, like the federal takeover of student loans, the creation of a healthcare army, which includes members of the states’ National Guard, and the hiring of 16,000 new IRS agents. But the main constitutional violations address what the Congress has ordered the States to do and what it has ordered individuals to do. These unconstitutional and troubling provisions are:

- Order the States to increase state taxes and spend the monies collected on healthcare.

- Order individuals to acquire health insurance that provides coverage acceptable to the federal government.

- Transfer regulation of healthcare from the States to the federal government.

- Put a federal bureaucrat between patients and physicians.

Can the federal government tell the States how to spend state generated tax dollars? In a word, NO.

Recall that the States formed the federal government, and not the other way round. When they did so, they gave away only seventeen specific powers, all written down in the Constitution, and expressly retained for themselves that which they did not give away. At the time the States formed the federal government, they were independent nation-states, and the powers that they gave to the new federal government were aspects of nationhood. Examples of the powers include raise an army and navy to defend the country, operate a court system, provide for standard weights and measures, coin money, and run a post office. These are all aspects of nationhood with which the States would no longer be concerned. But the States retained for themselves the power to legislate for the health, safety, welfare, and morality of the people in the States. The federal government simply has no authority under the Constitution to regulate in these areas or to tell the States how they should do so.

The Democrats have argued that the power the Constitution gives to Congress to regulate interstate commerce permits it to regulate healthcare. But I ask you; when you go to your doctor, is that for commercial purposes, or is it to enhance your health? The power to regulate interstate commerce was given to the Congress so it would keep commerce between the States regular, by eliminating state tariffs. It was not given to regulate purely local professional services like visiting a doctor. Can the Congress regulate a Tupperware Party? Of course not.

Since the federal government cannot tell the States how to tax and regulate in the areas reserved to the States and since the regulation of healthcare has been done by the States for the past 200 years, it follows that the Congress cannot order persons to purchase health insurance. The Congress cannot order us to wear shoes or buy guns, even though both are beneficial to us, so how can it order us to buy health insurance? As well, the Supreme Court has held that the most private—and thus most insulated from government intrusion—conversations we have are those between a patient and a physician. Yet, the statute just signed by the President violates that right to privacy by requiring physicians to share private medical information with federal bureaucrats and by permitting those bureaucrats to direct physicians how to treat you. The government cannot run the Post Office or Amtrak and has bankrupted Medicare, Medicaid, and Social Security. Can we really expect it to manage healthcare?

The Congress that enacted this monstrosity recognizes no limits on its own powers. It does not take seriously its oath to uphold the Constitution and it acts like a general legislature that can right any wrong, regulate any activity and tax any event. That is 180 degrees contrary to the values of inalienable rights and limited government that the Framers gave us.

Judge Andrew P. Napolitano joined FOX News Channel (FNC) in January 1998 and currently serves as the senior judicial analyst. He provides legal analysis on both FNC and FOX Business Network (FBN). He is also the host of Freedom Watch on Foxnews.com and co-hosts FOX News Radio's Brian and The Judge show daily. His latest book is the New York Times best seller, Lies the Government Told You: Myth, Power and Deception in American History. To learn more about Judge Andrew P. Napolitano visit, www.judgenap.com.