Four ways ObamaCare tramples the Constitution

Yesterday Kristan Hawkins at LifeNews noted that pro-lifers are waiting with bated breath for the Supreme Court to rule on the constitutionality of President Barack Obama’s intensely controversial health care law:

At this moment, I am standing in front of the Supreme Court with the rest of our team and missionaries on Capitol Hill. Waiting.  Waiting to see if today is the day that we find out whether or not Obamacare is constitutional. And whether or not our rights of conscience and freedom of religion will continue to be defended by those charged to protect them.

This is the biggest moment for the pro-life movement since January 22, 1973.

The main challenge to ObamaCare has concerned the individual mandate, which requires Americans to purchase health insurance. The Court’s Thursday ruling probably won’t focus on Health and Human Services Department rules forcing religious employers to include birth control in their health plans, but there is a chance the Court might decide to strike down the entire law, and it’s important for pro-lifers to have a broad understanding of why ObamaCare is so thoroughly and blatantly unconstitutional.

1.) The Constitution gives the federal government no general grant of authority over health care.

In Federalist 45, James Madison explains that the federal government is fundamentally different from state governments in one key way:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

While states are mostly free to legislate in “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State,” federal domestic policy is almost exclusively limited to objects expressly identified by Article I, Section 8 of the Constitution. It’s a pretty straightforward list, which says nothing about providing any health care to Americans – birth control or otherwise.

2.) The Commerce Clause does not empower government to make Americans buy products.

The Commerce Clause is the heart of Democrats’ legal justification for the mandate. The Clause, found in Article I, Section 8, authorizes Congress to “regulate commerce … among the several states.” They have argued that because one person’s decision to forgo insurance affects everyone else who pays premiums, the decision is an interstate economic activity subject to federal control. But Alexander Hamilton’s explanation of the Commerce Clause in Federalist 22 reveals a very different purpose:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy.

The intended purpose of Congress’s power to regulate interstate commerce was specifically to prevent the states from discriminating against one another through over-regulation, to erect a uniform standard that would keep the interstate flow of commerce mostly un-regulated. Further, Hamilton is clearly talking about regulating the actions of state governments, not of private citizens – especially not the inaction of those not crossing state lines. The Commerce Clause simply doesn’t make it government’s business what economic choices individuals make.

3.) The First Amendment protects people from being forced to participate in practices that violate their religious beliefs.

Not only does the Constitution give government no power to decide what services employers should offer, but it gives employers special protection against such control when religion enters the picture. The First Amendment lets Congress make “no law … prohibiting the free exercise” of religion. Private citizens and organizations are free to follow the dictates of their faiths, as long as doing so doesn’t violate anyone else’s constitutional rights (for instance, burning witches isn’t protected under religious liberty), and there is no constitutional right to be given birth control.

Ultimately, if “free exercise of religion” doesn’t at the very least mean you cannot be compelled to participate in practices that violate your religious beliefs, then it means nothing.

4.) ObamaCare violates separation of powers by delegating vast policy-making power to the executive branch and to unaccountable administrative agencies.

To prevent government from growing too powerful, the Constitution splits legislative power (making laws) and executive power (carrying out laws) into two branches. This also serves another essential function of good government: the people’s ability to clearly see who in government is responsible for which decisions, and to accordingly hold them accountable.

ObamaCare did not define which services employer health plans had to include; it left the details up to the Obama administration to decide. The problem is that any decision changing the liberties and obligations of the people, such as the HHS birth control mandate, is legislative in nature, not executive, and so must be made by the people’s chosen representatives. Congress cannot outsource its legislative responsibility to other departments.

Even worse, according to the Congressional Research Service, the number of new agencies, boards, and commissions created by ObamaCare is “unknowable.” If not even the CRS can determine how many new administrative and rule-making bodies exist under the 2,700-page law (much less their roles, jurisdictions, and oversight, each of which would raise brand-new constitutional questions), then what chance does the average citizen have?


A law professor trying to craft a model of bad legislation for his students to dissect would be hard-pressed to come up with something more target-rich than ObamaCare. It runs roughshod over all the principles the Founders deemed most important in our Constitution – economic and religious liberty, limited government, and accountability to the people. Its overturn would be a powerful affirmation that the rule of law still matters in this country, giving us renewed hope that the Supreme Court will correct other longstanding pro-abortion affronts to the Constitution.

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