Pat Dollard

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CNS News:

House Majority Leader Steny Hoyer (D-Md.) said that the individual health insurance mandates included in every health reform bill, which require Americans to have insurance, were “like paying taxes.” He added that Congress has “broad authority” to force Americans to purchase other things as well, so long as it was trying to promote “the general welfare.”

The Congressional Budget Office, however, has stated in the past that a mandate forcing Americans to buy health insurance would be an “unprecedented form of federal action,” and that the “government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Hoyer, speaking to reporters at his weekly press briefing on Tuesday, was asked by CNSNews.com where in the Constitution was Congress granted the power to mandate that a person must by a health insurance policy. Hoyer said that, in providing for the general welfare, Congress had “broad authority.”

“Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end,” Hoyer said. “The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.”

Hoyer compared a health insurance mandate to the government’s power to levy taxes, saying “we mandate other things as well, like paying taxes.”

The section of the Constitution Hoyer was referring to, Article I, Section 8, outlines the powers of Congress, including raising taxes, but not the purchasing any type of product or service. The opening paragraph of Section 8 grants Congress the power to raise taxes to, among other things, “provide for the … general welfare of the United States.”

Section 8 partly reads: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The Constitution then details the specific powers of Congress, including raising an Army and Navy, regulating commerce between states, and to “make all laws necessary and proper” for the carrying out of these enumerated powers.

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” concludes Section 8.

CNSNews.com also asked Hoyer if there is a limit to what Congress can mandate that Americans purchase and whether there is anything that specifically could not be mandated to purchase. Hoyer said that eventually the Supreme Court would find a limit to Congress’ power, adding that mandates that unfairly favored one person or company over another would obviously be unconstitutional.

“I’m sure the [Supreme] Court will find a limit,” Hoyer said. “For instance, if we mandated that you buy General Motors’ automobiles, I believe that would be far beyond our constitutional responsibility and indeed would violate the Due Process Clause as well – in terms of equal treatment to automobile manufacturers.”

Hoyer said that the insurance mandate was constitutional because Congress is not forcing Americans to buy one particular policy, just any health insurance policy.

“We don’t mandate that they buy a particular insurance [policy] but what we do mandate is that like driving a car — if you’re going to drive a car, to protect people on the roadway, and yourself, and the public for having to pay your expenses if you get hurt badly – that you need to have insurance,” said Hoyer.

In 1994, the Congressional Budget Office reported the following about health insurance mandates: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. 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.”

Under all five of the health care bills currently being considered in Congress, every American adult would have to have a policy that conformed to government standards for coverage and premiums. Each bill creates Bronze, Silver, and Gold health insurance plans and mandates that Americans buy one of them, either through their employer or through government-run exchanges.

David B. Rivkin, a constitutional lawyer with Baker & Hostetler, told CNSNews.com that Hoyer’s argument was “silly,” adding that if the general welfare clause was that elastic, then nothing would be outside of Congress’ powers.

“Congressman Hoyer is wrong,” Rivkin said. “The notion that the general welfare language is a basis for a specific legislative exercise is all silly because if that’s true, because general welfare language is inherently limitless, then the federal government can do anything.

“The arguments are, I believe, feeble,” he said.