During the GWB administration, many within the USA expressed concern about the constitutionality of detaining several hundred alleged enemy combatants in Guantanamo.


Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.


But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.


In fact, the constitutional difficulties are profound.  This is certainly so for those who believe the Constitution means what our Founders understood it to mean.  But it is even true for those interested only in modern Supreme Court jurisprudence.  When Obamacare was passed into law, much of the contents clashed with our nation's basic laws and precedents.  At this time, just after an election that could have been said to repudiate Obamacare, we should again revisit those premises so that we can see whether that law should be left alone, amended or scrapped.


1) Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document.  (The exact number depends on how you count.)  None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories. The only enumerated powers of the Constitution Obamacare contains is to the severability clause, which saves the rest of the 2000+ pages if some part is found to be unconstitutional.


2) Tenth Amendment. Technically, the Tenth Amendment is merely a declaration that the federal government has no powers beyond those enumerated in the Constitution.  However, the modern Supreme Court has cited the Tenth Amendment in holding that Congress may not “commandeer” state decision making in the service of federal goals.  But the mandates that Obamacare would impose on states certainly could be found “coercive,” both because they are excessive (they would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.


3) Substantive Due Process. The Substantive Due Process doctrine was not contemplated by the Founders, but the courts have engrafted onto constitutional jurisprudence.  The courts employ this doctrine to invalidate laws they think are unacceptably intrusive of personal liberty or privacy.  Roe v. Wade struck down state abortion laws that intruded into the doctor-patient relationship, but the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by Obamacare.

4) Excessive Delegation. The Constitution “vests” legislative authority  in Congress.  Congress is not permitted to delegate that authority to the executive branch.  This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits.  In Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations proposed in Obamacare.



A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power.  Obamacare will increase that power greatly, so it is not surprising that it has constitutional difficulties.


Moving in that direction is a change of “constitutional dimension.”  The proper way to make such a change is not through an ordinary congressional bill.  The proper way is to start with a constitutional amendment, and follow up with legislation. 


Otherwise, it can be rightly looked at as an illegitimate wrest of power by the federal government from the states and the people themselves.  Can't it?




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More pressing: at the end of the year the GWB tax cuts will expire and a lot of non-wealthy people who have saved throughout their life will lose out. Is there any hope to extending them?
Great post X! I tried to make this point some time ago, way before Obamacare was passed.
Thank you, Max. I believe I remember you making some of those same arguments then, and if I did reiterate any of your points, it is the purely coincidental synchronicity of two working minds digesting all the material and getting the same product in the colons of our brains.
And Gitmo is still open and detainees are still setting down there nearly a year after it was suppose to close... with no end in sight as to when it will actually close.
I think its about time we have a thread on President Obama's performance so far, a mid-term report card if you will, which looks at his original goals and objectives and his accomplishments of them. There is a lot that the left, right, and middle can criticize at this point, and I am sure there are some positive aspects as well-- it would be nice to review those as he prepares for his next campaign.
I think Ultimatly parts of the Health Care Bill will be stripped by the Supreme Court. If not repealed by congress once they see the writting on the wall as to the way the court hearings break as they head tword the Court. Being as the most potent parts of that legislation not only require everyone to purchase insurance but the fine or premium is needed to pay for the rest of the programs implimentation. Edie I really think the tax breaks will go on for a year or two but even that will not nessisarally improve many businesses ability to decide on adding people or even equipment to grow I fear.


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