Sen. Mary Landrieu (D-La.) told CNSNews.com she would leave it up to the “constitutional lawyers” to explain exactly where Congress gets the constitutional authority to force Americans to buy health insurance, the central mandate in both the Senate and House health care bills.
Flashback: The $100 Million Health Care Vote
Landrieu, in her second term as a U.S. senator, responded to a question from CNSNews.com at a press conference about the effect health care reform would have on small businesses. Sens. Blanche Lincoln (D-Ark.) and Debbie Stabenow (D-Mich.) joined Landrieu at the press conference.
CNSNews.com asked Landrieu: “You mentioned that there will be no employer mandate [in the Senate health care bill] but there is an individual mandate, and several members of Congress have said that an individual mandate is unconstitutional. What part of the Constitution do you think gives Congress the authority to mandate that individuals have to purchase health insurance?”
Landrieu said: “Well, we’re very lucky as members of the Senate to have constitutional lawyers on our staff, so I’ll let them answer that.”
“But what I will say is that most certainly it is within Congress’ jurisdiction to come up with a way to have a health insurance funded with shared responsibility, is the way I like to, you know -- government has a responsibility, individuals have a responsibility and business has a responsibility,” said Landrieu.
The health care bill that passed the House and the Senate bill (as currently written) both require that individuals purchase health insurance or face a penalty from the Internal Revenue Service (IRS).
Landrieu defended the individual mandate in the Senate bill, saying that the burden of paying for health care reform should not fall “too heavily” on one group of people.
“So, while some people, and I occasionally will use the word mandate for or against, but it’s really a shared responsibility, so that the burden of this doesn’t fall too heavily on any one group,” she said.
In the 233-year history of the United States, the federal government has never mandated that individual Americans purchase any good or service.
In 1994, when Congress was considering President Clinton’s proposal for a national health care plan, the non-partisan Congressional Budget Office said that for federal government to order Americans to buy health insurance would be “unprecedented,” adding that the government had “never required” Americans to purchase anything. “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action,” CBO found.
“The government has never required people to buy any good or service as a condition of lawful residence in the United States," said the CBO report.
"An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government."
Sen. Orrin Hatch, the former chairman of the Senate Judiciary Committee, offered an amendment to the health care bill while it was under consideration in the Senate Finance Committee that would have expedited judicial review of the provision that mandates individuals top buy health insurance. Finance Chairman Max Baucus (D.-Mont.) ruled that the amendment was not the proper jurisdiction of the committee and did not allow a direct vote on it. Hatch later told CNSNews.com that he believes the provision is unconstitutional.
Hatch told CNSNews.com that if the claim that the federal government has the constitutional authority to force American to buy health insurance were allowed to stand, "then there is literally nothing the federal government can’t force us to do."
CNSNews.com has asked a number of senators to point out specifically where the Constitution authorizes Congress to force Americans to buy health insurance.
For example, Sen. Daniel Akaka (D-Hawaii) previously told CNSNews.com he is “not aware” of the Constitution giving Congress the authority to make individuals purchase health insurance.
On the other hand, Sen. Roland Burris (D-Ill.) told CNSNews.com that Congress has the authority to force individual American to buy health insurance becuse the Constitutions says to provided for the "health, welfare and the defense of the country."
“Well, that’s under certainly the laws of the -- protect the health, welfare of the country," said Burris. "That’s under the Constitution. We’re not even dealing with any constitutionality here. Should we move in that direction? What does the Constitution say? To provide for the health, welfare and the defense of the country.
The word "health" appears no where in the Constitution. Burris’ communications director later told CNSNews.com he was referring to the “general Welfare” clause in the Constitution.
However, Senator Orrin Hatch (R-Utah) said the general welfare clause should not apply to health insurance.
“Well, keep in mind the general welfare clause hasn’t been used for years, except through the Commerce Clause --Article I, Section 8,” said Hatch. “And, frankly, the Commerce Clause affects, quote, ‘activities,’ unquote. And, you know, the government telling you, you have to buy health insurance -- mandating that you have to buy health insurance -- is not an activity. That’s telling you, you got to do something you don’t want to do.”
Senate Judiciary Chairman Patrick Leahy (D.-Vt.) and House Speaker Nancy Pelosi were dismissive when asked where the Constitution authorized Congress to force individuals to buy health insurance.
“I mean, there’s no question there’s authority. Nobody questions that," said Leahy.
"Are you serious? Are you serious?" said Pelosi.