Trey Gowdy

Let’s start by acknowledging that having health insurance is wise. Exercising regularly is wise; so too is remembering your anniversary and not playing golf during a thunderstorm.

The relevant question isn’t simply whether something is wise; the question is whether Congress can force you upon penalty of a fine to do it. In other words, is the centerpiece of the recently passed health-care legislation — the individual mandate to purchase health insurance — constitutional?

You certainly can’t find support for mandating citizens to engage in private, commercial transactions in the plain text of the Constitution. Supporters of the individual mandate then argue the “commerce clause” allows Congress to require individuals to purchase health insurance.

Article 1, Section 8 of the Constitution provides in pertinent part “Congress shall have the power … to regulate commerce … among the several states.” The problem with this analysis is at least two fold: (1) health insurance currently cannot be purchased across state lines so there is no interstate commerce to regulate, and (2) not buying health insurance is not an act of commerce any more than not buying anything else would be commerce. Inactivity is not commerce.

While it is regrettably true that the latitude or elasticity of the “commerce clause” has been expanded greatly by federal courts, surely there are some limits as to what constitutes “commerce” or else the 9th and 10th Amendments are meaningless. Twice recently the U.S. Supreme Court has struck down federal statutes that were outside the reach of Congress’s ability to regulate commerce.

In U.S. v. Lopez, the court struck down a portion of the Gun-Free School Zone Act, which sought to regulate the possession of a gun on or near schools. Discouraging students from bringing firearms to school is laudable.

But it is a state matter and not a matter for Congress; so too with U.S. v. Morrison, wherein the court struck down a portion of the federal Violence against Women Act. Having spent the past 16 years prosecuting violence against women, it is an extremely important issue to me. We began a “Violence against Women Task Force”, a Domestic Violence Coordinating Committee, and placed prosecutors in magistrate court. But the “we” in the foregoing sentence is the State of South Carolina, not the United States Congress.

Individual mandate proponents then argue the “lay and collect taxes” to provide for “general welfare” provision of Article 1, Section 8 allows Congress to require that you buy health insurance. If this is true, then Congress truly can require you to eat beets because “general welfare” is so broad and amorphous as to be essentially meaningless when discussing public policy and constitutional restraint.

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If the general welfare clause can require you to purchase health insurance can it also require you to buy life insurance? If not, why not? Can Congress also tell you what kind of policy to buy, which exclusions to avoid, what deductible to have? If not, why not?

Controlling the costs of health care, increasing transparency, rewarding positive outcomes, reducing the need for defensive medical practices, eliminating frivolous lawsuits and increasing access for the currently uninsured can be done without doing violence to the Constitution. If commerce includes “inactivity” and if “general welfare” can be read so expansively, then Article 1, Section 8, is left with no meaning, and we are left with an unlimited federal government.

The 9th and 10th Amendments provide both a limiting effect on any enlargement of the number or any enlargement of the scope of the enumerated powers. Constitutional challenges to the substance of the recently passed health-care legislation should be pursued, particularly as it relates to the individual mandate.