Wednesday, April 7, 2010

Health Care and the Constitution

After a year of contentious debate, it became clear that the House intended to pass the health care bill by whatever means necessary, even if it required the use of a “deem and pass” procedure whereby Members would not vote directly on the bill. After a massive public outcry arose against that unconstitutional proposal (Article I, § 7, ¶ 2, and § 5, ¶ 3 direct that “the votes of both Houses shall be determined by yeas and nays” on a measure rather than just “deeming” it passed), Rep. Chris Van Hollen (MD), head of the Democrat Congressional Campaign Committee, urged Democrat House Members to remain quiet and avoid talking about the unconstitutional process in an attempt to lessen the political backlash. 1

That procedure ultimately was not used, but once the health care bill passed, voters demanded of congressional leaders the constitutional provision that authorized the federal takeover of health care. In answering that question, Rep. John Conyers (MI) replied: “Under several clauses – the Good and Welfare Clause and a couple others. All the scholars – the constitutional scholars that I know (I’m chairman of the Judiciary committee, as you know) – they all say that there’s nothing unconstitutional in this bill.” 2

Of course, there is no Good and Welfare Clause in the Constitution, but assuming that Conyers simply made an honest mistake, he likely was referring to the General Welfare Clause, which appears in two locations:

We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote THE GENERAL WELFARE, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. PREAMBLE TO THE CONSTITUTIONThe Congress shall have power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and GENERAL WELFARE of the United States. ART. 1, SEC. 8, PAR. 1

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