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December 29, 2009

Health Insurance and Enumerated Powers: Congress claims the healthcare bill is Constitutional. Do you agree?

The Enumerated Powers Act (EPA) requires that every bill must specify its source of Constitutional authority. This would prove very embarrassing to Congress, because there is no Constitutional authority for most of what they pass.

Good news!

Two more House members have co-sponored EPA over the past month, bringing the toal to 56. Sadly, the Senate is still stuck at 22 co-sponsors. You can find . . .

* The House co-sponsors here:
* And the Senate co-sponsors here:

Let’s flood Congress with letters demanding that every member co-sponsor the Enumerated Powers Act.

Here is what I wrote in my letter . . .

An example of a tortured justification for an unconstitutional bill is found in Section 1501 of H.R. 3590. It tries to explain the Constitutionality of forcing individuals to buy health insurance.

I suggest you read Cato’s Robert A. Levy and Michael F. Cannon commentary on this.

As well as economist Fred Foldvary’s commentary.

Congress asserts it can compel Americans to purchase health insurance because NOT purchasing health insurance impacts interstate commerce.

* But for decades Congress has allowed states to bar their residents from purchasing health insurance from another state.
* Which means Congress never previously believed that the purchase (or non-purchase) of health insurance was interstate commerce.
* The decision to NOT purchase a good or service is NOT commerce, let alone interstate commerce.
* But under the absurd logic of this bill, if I choose to take a nap rather than go to a movie, I’m engaging in “commerce” and Congress can compel me to either go to the movie or pay a tax penalty.
In any case, the Commerce Clause is limited by other provisions in the Constitution, such as the Ninth Amendment. As Foldvary states, “the Ninth Amendment recognizes there are moral and common-law rights that exist prior to and apart from the U.S. Constitution.” An individual who chooses to NOT purchase health insurance is NOT harming others. He may be making a rational estimate that the costs of insurance will be larger than the cost of the care he will expect to receive. Whether we agree with his assessment or not, he certainly has a right to control his own body and money. His decision to not purchase insurance does not constitute a violation of anyone else’s rights. Forcing him to purchase a service he does not want, however, is a clear violation of his rights.

Moreover, the tax penalty in the bill is unconstitutional. As Levy and Cannon state, it is not an income tax or an excise tax, but “is a fixed amount based on family size. That means it’s levied per person and therefore a ‘direct tax’ under the Constitution, which requires that such taxes be apportioned among the states according to their population, as determined by the census.”

And Levy and Cannon conclude, “Congress’ attempt to punish a non-act that harms no one is an intolerable affront to the Constitution, liberty, and personal autonomy. That shameful fact cannot be altered by calling it health-care reform.”

Any judge or informed citizen should find the reasoning of Section 1501 laughable. That’s the very reason I’m glad it’s in the healthcare bill. Please oppose the unconscionable and unconstitutional healthcare bill. And then please pass the Enumerated Powers Act and force Congress to try to justify other unconstitutional bills.


You can send your letter using’s Educate the Powerful System.

And share this Dispatch with your friends.

James Wilson
Assistant Communications Director

P.S. Several members of Congress have been asked about the Constitutionality of the indivdiual mandate in the healthcare bill. You can see their responses in these two blog posts:



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