For crying out (expletive deleted) loud, has anybody, anywhere freaking bothered to read the (bleeping) Constitution!!!
Mitt Romney, the Republican Party nominee for president, who, if he wins, will have to take an oath to uphold the Constitution, went on “Meet the Press” Sunday and blithely promised that, while he would seek to repeal ObamaCare, he also would like to keep health insurance coverage for people with pre-existing conditions.
You can quibble till the cows come home, as assorted media blatherers are today, about just how many people Romney’s plan would cover, but the point should be, but almost never is, what he proffers is simply on its face unconstitutional.
“I’m not getting rid of all of health-care reform. Of course there are a number of things that I like in health-care reform that I’m going to put in place,” Romney said on the NBC program. “One is to make sure that those with pre-existing conditions can get coverage.”
Romney also said he would allow “individuals to have policies that cover their family up to whatever age they might like …”
Never mind that this concept shreds, spindles and mutilates the very definition of the word “insurance” as a pooled risk business and turns it into a scheme for redistribution, it fundamentally defies the plainest language of the Commerce Clause. You know, Article 1, Section 8, Clause 3 of the U.S. Constitution that states, “The Congress shall have power to … regulate commerce with foreign nations, and among the several states, and with the Indian tribes …”
Telling an insurance company to whom it must sell its product, and presumably at what price, is not regulating commerce among the several states. It is dictating a transaction between private citizens, who should, under the Tenth Amendment, retain the powers not delegated by the Constitution to the federal government.
What Congress might have the power to do under the Commerce Clause — and the only say the president would have is whether to veto it — is pass legislation stating a resident of Nevada may purchase health insurance from an insurance company in, say, Massachusetts, even though that insurance policy would not cover breast enlargement or penisectomy surgery, which might be required by the Legislature of Nevada for in-state insurers.
For a refresher course on the Commerce Clause, we turn to our old friend Seth Lipsky and his book, “The Citizen’s Constitution: An Annotated Guide.”
Lipsky points out that the Commerce Clause was largely ignored and abused by FDR’s New Deal Congress, aided and abetted by a compliant Supreme Court under the threat of court packing by the president.
This gave us such abominations as the Agricultural Adjustment Act, under which farmer Roscoe Filburn was fined for growing more wheat for his personal use than the feds allowed. The argument was that had he not grow the wheat he would have had to engage in commerce and buy wheat. The Supremes bought that.
But the high court has since retreated in a couple of cases, Lipsky notes, specifically by negating the Gun-Free School Zone Act of 1990.
The high court ruled:
“To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. … The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated … and that there never will be a distinction between what is truly national and what is truly local. … This we are unwilling to do.”
Nowhere is Congress or the president granted the enumerated power to dictate individual business transactions. Maybe Massachusetts could do it, though even that is contrary to the spirit of individual liberty.