Last updated on: 6/19/2015 8:38:22 AM PST
Is Obamacare Constitutional? - DEBATED


General Reference (not clearly pro or con)

[Editor's Note: On Thursday June 28, 2012 the US Supreme Court upheld the constitutionality of most of the Patient Protection and Affordable Care Act in a 5-4 ruling. The majority opinion was written by Chief Justice John Roberts and joined by Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas dissented.]




PRO (yes)

In the three cases against the Patient Protection and Affordable Care Act (decided June 28, 2012), the US Supreme Court, in a 5-4 majority decision written by Chief Justice John G. Roberts, JD, held that:

"The Government advances two theories for the proposition that Congress had constitutional authority to enact the individual mandate. First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause... Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress's power to tax...

The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding. There is no reason to depart from that understanding now...

The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce...

Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government's second argument: that the mandate may be upheld as within Congress's enumerated power to 'lay and collect Taxes.' Art. I, §8, cl. 1...

The Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."





Akhil Amar, JD, Sterling Professor of Law and Political Science at Yale University, and Todd Brewster, Don E. Ackerman Director of Oral History at West Point and Director of the Peter Jennings Project for Journalists and the Constitution, stated in their Mar. 19, 2012 article "Rejecting Affordable Care Act is Rejecting Constitution," available at blog.constitutioncenter.org:

"The Constitution undeniably gives Congress sweeping power to tax. And if Congress can tax a person, and then use that tax money to buy a health-care package for that person's benefit, why can't it simply direct the person to procure the package himself, or else pay a higher tax?...

Once we see that the 'penalty' is a tax and that Congress has the power to tax, the constitutional case against the law collapses.

But even if the law were not a tax, it still easily passes muster as an exercise of a second key power of Congress – the power to regulate interstate commerce...

The federal government represents voters, so it can tax voters and impose mandates on voters, whether these mandates oblige constituents to join militias or buy muskets (as did the Militia Act of 1792, signed into law by President George Washington), to serve on juries, or buy health-care insurance."





Laurence Tribe, JD, Carl M. Loeb University Professor at Harvard Law School, stated during a debate on the constitutionality of Obamacare held by the Manhattan Institute on Sep. 15, 2011, available on youtube.com:

"The real [constitutional] objection is making someone buy something he doesn't want to buy is a terrible invasion... The idea that you're forced to buy something here is simply a caricature. It's not as though the law is dragging you into an insurance company's office and saying here sign on the dotted line. They're just saying that because you're going to be imposing serious burdens on the system, either on other insurance buyers because of higher premiums, or on taxpayers, if you choose to... take the risk that when you need medical care you will be able to pay for it, or someone else will pick up the tab, because of that we're going to increase your income tax liability an appropriate amount if you don't buy the insurance when you can afford it. That is an exercise of the tax power...

In any event it's not true that you are somehow compelled into an involuntary contract, so this is not an extraordinary exercise of government power, it's simply a fairly conventional exercise, though it's part of an enormous overhaul of the health care system...

[T]he question is not whether it's wise policy. The question is whether, in terms of what our Constitution was from the beginning and has elaborately become over time, it is consistent with the Constitution...

I think this law is perfectly constitutional."




CON (no)

Antonin Scalia, LLB, Anthony M. Kennedy, LLB, Clarence Thomas, JD, and Samuel Anthony Alito, Jr., JD, US Supreme Court Associate Justices, stated in their dissenting opinion in the three cases against the Patient Protection and Affordable Care Act (decided June 28, 2012), available at law.cornell.edu:

"Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection and Affordable Care Act (Affordable Care Act or ACA) go beyond those powers. We conclude that they do...

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs...

The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding.  These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them.  In our view it must follow that the entire statute is inoperative."




Ted Cruz, JD, US Senator (R-TX) and 2016 US presidential candidate, stated in his Dec. 2013 report titled "The Legal Limit: The Obama Administration's Attempts to Expand Federal Power: Report No. 2: The Administration's Lawless Acts on Obamacare and Continued Court Challenges to Obamacare," available at cato.org:

"Obamacare violated the Constitution’s Origination Clause, because it raised revenue but did not 'originate' in the House of Representatives...

Under the Constitution’s Origination Clause (Article I, Section 7, Clause 1): 'All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.'...

The original House-passed version of H.R. 3590 was not a revenue raising bill. It may have dealt with tax issues, but every bill dealing with tax issues is not necessarily a revenue raising bill. Tax bills can reduce revenue. Indeed, the original version of H.R. 3590 would have reduced—rather than have raised—federal revenues. Thus, regardless of how the Senate amended H.R. 3590, it never was, nor ever could have been, a 'Bill[] for raising Revenue' that "originate[d] in the House of Representatives.'...

Obamacare, in contrast to [the House-passed version of] H.R. 3590, was a revenue-raising bill. As the Supreme Court has held, it levies new taxes...

Under the plain text of the Constitution, Obamacare had to originate in the House of Representatives. It did not, and is therefore unconstitutional."




Rick Santelli, an on-air editor at CNBC, stated in his Dec. 20, 2013 article titled "Obamacare Is Unconstitutional," available at cnbc.com:

"The U.S. Constitution is a short, straightforward document — and yet we seem to have thrown it out the window with the Affordable Care Act.

The beauty of what the founding fathers accomplished can be summed up in two words — "checks and balances." The Constitution is pretty strict about who can do what and who has a check and balance on whom. And it's very clear about how laws should originate. Per the Origination Clause, or Revenue Clause as it's sometimes known, bills that involve legislation for increasing revenue must start in the House. There were several versions of health-care reform legislation kicking around the House and the Senate but the House wasn't getting the votes to pass it. So the Affordable Care Act that was passed into law actually originated in the Senate.

Bottom line: I don't think the law is constitutional."