Is Harry Reid's Health Care Bill Constitutional?


Legal scholar Richard Epstein has a long, carefully detailed article at explaining why the Reid bill fails to pass constitutional muster. From his introduction:

In effect, the onerous obligations under the Reid Bill would convert private health insurance companies into virtual public utilities. This action is not only a source of real anxiety but also a decision of constitutional proportions, for it systematically strips the regulated health-insurance issuers of their constitutional entitlement to earn a reasonable rate of return on the massive amounts of capital that they have already invested in building out their businesses.

Read the whole thing here. Read Epstein's Reason archive here.

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  1. Is Harry Reid’s Health Care Bill Constitutional?

    Does it matter any more?

    1. Well, a legal challenge might be a last-ditch effort to prevent this monstrosity from taking effect.

    2. exactly. and when did it stop mattering? certainly before this citizen’s lifetime… sigh

    3. Are you serious? Are you serious?

      1. My bullwhip is at the ready for you lady.

        1. Props to reason for adding the Reason store at the end of the bullwhip URL!

    4. Who cares? Given that liberals have been using the Constitution as a cudgel to beat the very people it was written to protect for the last 50 years or so, I doubt even Madison himself would bother to support it any longer.

    5. As a constitutional professor I’m going to say “present”.

  2. What a quaint notion. No, not under the Constitution as written, but under the “living” Constitution, all is possible.

    Then again, as the great philosopher Josey Wales once quipped, “dyin’ ain’t much of a livin’.”

  3. A1. No.
    A2. They don’t care.

  4. Are you serious? Are you serious?

    1. PLAYOFFS?!?!?!
      Who said anything about PLAYOFFS?!?!?

      Go Broncos!!! Ohh nevermind

      1. The Bears are who we thought they were!

  5. Not to mention the fact that the federal government has no Constitutional authority to require citizens to purchase health insurance or any other product or service.

    Although the feds have the power to regulate interstate commerce, they DON’T have the power to compel people to engage in commerce whether they wish to do so or not.

    1. Although the feds have the power to regulate interstate commerce, they DON’T have the power to compel people to engage in commerce whether they wish to do so or not.

      It’s long past time for us to abolish the commerce claus and replace it with a simple prohibition of trade barriers between the states.


      1. Is Commerce Claus the hairy fat guy who brings new powers to the good Congressboys and Congressgirls every Christmas?

        1. There are good Congress critters? Even if there were, we’ll see how long Commerce Claus brings them presents when they start leaving him transfat free cookies, and allow his elves to organize with card check.

  6. Since did any member of congress give a fuck about the consititution?

    Jeff Flake maybe, Ron Paul. Betr i could count them with my finger or my dick.

  7. As if “constitutionality” mattered one whit any more. When the Supreme Court says you don’t have any rights from the Bill of Rights within 100 miles of the border, you know the bullshit reigns supreme. It’s just a fucking piece of paper, people. Understanding that makes everything very clear.

    1. Indeed, on one of the federal government websites, it’s referred to (along with the DOI) as “historical documents”. As in “yeah, real quaint, but this ain’t the 1700s anymore.”

  8. What gets me is that there is no interstate competition in health insurance. How can the power to regulate interstate commerce be used to compel the purchase of a product in which there is no interstate commerce?

    1. You are obviously not a constitutional scholar like Dear Leader.

      1. Indeed, nor a hopemonger like The Hopester.

        1. The Hopester!!

          [flicks finger against neck of magnum jug]


    2. This is why we have the health care we have now yet no one ever discusses it.

    3. How can the power to regulate interstate commerce be used to compel the purchase of a product in which there is no interstate commerce?

      Oh, they’ll find a fuckin’ way. Believe me.

  9. How can the federal government make me buy anything from another private party? Car insurance etc is all done on the state level. Is the federal government going to coerce every state in the union to implement the specific health insurance laws?

    1. Auto insurance is also different in the respect that you don’t have to buy it if:
      A. You don’t want/need to drive, or
      B. You have at least $50K in cash to self insure.

      There is no “out” for mandatory health insurance, other than moving out of the country.

    2. With their police power*.

      *Is that the right term?

      1. The federal government, unlike state governments, does not really have police powers.

        1. Um, don’t they really have police power that they are not supposed to have?

  10. Even if this get passed, I’d say someone out there is going to sue. And maybe a federal court judge will put the whole thing on hold until it is resolved.

    1. To sue, you need standing. That is going to be tricky to establish, at least until the fines start kicking in in 2013.

      1. Doesn’t anybody affected have standing as soon as it is passed, before it is imposed?

  11. sounds unconstitutional, so I’m playing it safe and not participating. remember, just following orders is no excuse.

  12. Is this constitutional?

    U.S. taxpayers are spending more than $40,000 per month on office space, staff, cell phones and a leased SUV for former House Speaker Dennis Hastert, even as he works as a lobbyist for private corporations and foreign governments.

    The payments are perfectly legal under a federal law that provides five years of benefits for former speakers ? but only if Hastert never makes use of his government-funded perks in the course of his lobbying work.

    Ethics experts say that sort of separation is hard to maintain. Hastert “has to be meticulous in his schedule to make sure there is no bleed from his publicly subsidized office into his private practice,” said Kenneth Gross, a former Federal Election Commission general counsel and congressional ethics authority.

    Steve Ellis, vice president of the watchdog group Taxpayers for Common Sense, called the arrangement “really concerning.”…..ck_check=1

    1. Forty large…a month??

      Probably not unconstitutional, but fucking ridiculous. And it’s not like Denny’s been missing many meals lately.

    2. Well that’s real interesting and all, but what does it have to do with the healthcare bill?

  13. Is Harry Reid’s Health Care Bill Constitutional?

    We, being crackpots who want babies to die wheezing in the gutters, see a broad and obvious unconstitutionality to this.

    An actual challenge, whatever its probability of success, will more likely than not take the form of an esoteric and narrowly construed reading of an obscure ruling hundreds of years old.

    1. Is Harry Reid’s Health Care Bill Constitutional?

      This article goes on at length about a peripheral issue, rather than “it’s not a fucking enumerated power, so, no”.

      1. I’m with you. Why Epstein has to go into voluminous detail is beyond me. Is the Congress acting pursuant to Article 1, Section 8? No? Then it’s unconstitutional. STFU and GBTW, congresscritters.

        1. HE is trying to argue within the narrow straights of bullshit that the Court has already defined. Yes, you are right on your broad point, but that means nothing in the Court’s eyes.

          1. +1

            The question is “Will this pass muster under current jurisprudence?”

            Seeing that Wickard v. Filburn and Raich v. Gonzalez are still precedents, I don’t see how it would be overturned.

  14. Wait, we have corrupt people in DC that are stealing from taxpayers?

    I am Jack’s complete lack of surprise.

  15. How come there aren’t any Republicans screaming this from the floor during debate, that it’s unconstitutional? Is it because they don’t want anyone calling them on unconstitutional crap they did vote for in the past, or because it’s some sort of deference to the Supreme Court as a separation of powers nicety?

    1. How come there aren’t any Republicans screaming this from the floor during debate

      Their microphone was cut.

      1. Mic cut wouldn’t be it for reasons Nick mentioned above. The republican’s don’t like the Constitution either.

    2. A few did (Orrin Hatch), but most of them would love the chance to pass some unconstitutional legislation of their own, once they are back in power. Acknowledging unpassable limits on the legislature is not something the legislature particularly wants to start doing.

  16. Now now now, lets not let the Constitution get in the way of progress.

    1. ‘Atta boy!

      1. I know I never did.

      2. Okay, I know I heard it that time! Anyone else?

  17. I gather from Richard Epstein’s analysis that what this bill is looking for is what’s traditionally shunned by insurance regulation: “cowboy” insurers who won’t really have the assets to cover what they claim to — at least, for long.

    1. Which is why single-payer is the way to go.

      1. To go where?

          1. I’d be happy with 0 right now, given that we’re at -12,000,000,000,000 now.

  18. … constitutional entitlement to earn a reasonable rate of return…

    Wait, what??

    I’m all for the right not to have one’s capital confiscated by the government “for the greater good”, but anyone who claims a constitutional or natural right to a return on one’s invested capital is surely out to pick my pocket.

    1. It does explain the bailout, though. You have a right not to lose money when your dumbass decisions catch up with you!

  19. Eugene Volokh has an article making a similar regulatory takings argument here . I would encourage everyone to take a look at it. It’s much easier for a layman to understand.


      1. I’m not convinced repealing the 16th would do anything unless we put in a specific prohibition against taxing incomes.

        As for the 17th, I think that would help by making the Senate less responsive to the mob and more jealous of the powers reserved to the states.

  21. Your Betters can do whatever they Hell they want, so suck on it, peon.

  22. This is why everyone should support S.1319, a bill by Orrin Hatch that would require each “Act of Congress [to] contain a concise explanation of the specific constitutional authority relied upon.”

  23. I love Richard Espstein (you know, in a platonic way manly way); his text book helped me keep my sanity while enduring an entire year of a marxist professor bullshit during first year Torts class in NYU law.

    But, while he makes fine and reasoned arguments why the bill should be unconstitutional, I think that horse is already out the barn and the Court is ready to roll over for anything Congress and the Executive want to shove up our asses.

    1. Not ‘ready to roll over’. ‘Already has’. The Court has so broadened the Commerce Clause that this isn’t that much of a stretch.

  24. Damn Tenth Amendmenters! Don’t they know that part of the Constitution is a hindrance to My Benevolent Dictatorship?

  25. I may be a lonely holdout, but I think McCain/Feingold was the best thing ever written in the history of American governance.

    I should know, I masturbate to it every day. Without it, I’d be exposing myself at various DC Metro bus stations.

  26. Yanks hit with luxury tax:…..x?pageid=1

    What th’…?

  27. “In effect, the onerous obligations under the Reid Bill would convert private health insurance companies into virtual public utilities.” I rather like that more than health insurance companies converting government into actual health insurance employees.

  28. Of course its not fucking constitutional. What the fuck does that have do with any thing? Those mother fucking oath breakers haven’t given a shit about that in quite a long fucking tine.

  29. Does the healthcare bill say “Everyone must buy medical insurance” or does it rather say “There will be a surtax of X dollars on those who do not have medical insurance.” There’s a major difference: the latter is not mandating that you purchase insurance, it’s just taxing you if you don’t have it. From a non-lawyer

  30. I have weighed this issue Health Care Bill vs. Constitution, and if a Political Party Gains control over a people because if the Health Care Tax Dollars, then it is laws with out moral value.
    You see when tobacco companies became under fire the laws were based on a moral value because of the issues within.
    The moral building blocks from Bill to Law is not supported because these Laws are for increase taxes and force pay against the people and a increase tax forum in a wide coverage stated to be in the best interest of the Country.

    So this is Health Care Reform at its best, please allow me to share a concept that will open your mind in a way never thought of for a United Forum Concept. At first I stood alone and I wrote my first blog and little did I know that thousands of people and companies stood by it,
    I have waited to see the issues of tax increase and health care, something that may be wrote by President Obama,
    You see a lot of what I write, is in fact that, I do not seek Political support because I do not belong to any party. As for President Obama and theses 60 people that hold seat of Government who wish to build 1900 page of law to Govern this system because of this Health Care dollar. I watch them stumble about without a clue of how to fix this failed system. To see into this failure, you must allow this system to be seen as a forum for dollars of taxes created as a constant as a yearly figure. This prediction of dollar for the future, is in fact what I call Artificial Intelligence built on the hope that taxes will stay a constant figure.
    To state it simple if Health Care Insurance Companies Unite and hand over this issue then the Officials of Government then they will have have no choice but to turn their eye to the companies of medication and medical supplies and hospitals and Doctors who charge cost that is the cause and effect of this failure within this system.
    This Health Care Forum we offer is built on a moral value, a strategic forum to place issues to work ,that offers freedom to be a part of it or not. This force pay against companies, force pay against VETS, and so on shows the lack of a moral building block within this Health Care Reform.
    What we offer is that, will, Lets use the AARP Health Care Insurance Company, and lets say that they have 30 million members. To show that this company can earn $150 million dollars per month and be released from the burden of medical cost, by what we wish to show as health care tax forum and a freedom of choice for a pay in to a forum to a Insurance Company for people who do not trust this system within The United States Government. A tax forum forces the Government system to work for the people and at the same time forces Government Officials to work for the people within this forum.
    To reach out to a company and sit down with them to build something never attempted in order to rebuild lives and the National Security of The United States as a moral building block without laws to Govern, but to protect this system from crime is what a moral law use to stand for.
    To show a $100 trillion dollar strategic building block by companies of freewill that step forward to help rebuild America. To build the most powerful anti war / crime forum ever conceived by such as I a nobody that only seek to only go back to work as a painter and rebuild his little company dream.
    As stated at first I stood alone against so many and I have found the uniting of people of different faith that seeks the same as I do. What makes FASC Concepts different, we do not ask for money and we opened a door for people to put their faith into themselves as a person and not what we say, to build on this and protect it under the concepts of law such as the Patriot Act. {A Moral Concept}
    There is a day coming that Officials of Government will see that the Laws built against God and Country was the first steps of the United States Of America headed for failure because it lacks moral value. This is what our enemies see, a Country of Laws that should of never been created by few against so many people of the USA.
    Is it so hard to see a concept for a Health Care Stimulus Package that builds jobs and life within a anti / crime forum ?
    Henry Massingale
    FASC Concepts in and for Pay It Forward
    found on And yahoo look for page 1 american dream offical site.

  31. 2/26/2010
    Wow, It was stated that Health care is not a moral issue,hmmmm
    Please allow me to share a little story with you. As I watched my mom die from cancer, and Health care Insurance Companies dumped on her as if she was no more than a dog dieing on the side of the road, i dropped from and out of this system for over 30 years, and now because of system failure, the IT, has come into my life. As I watch Government Officials fight over this Health care Dollar, it reminds me of a bright sunny day in Tennessee while on a friends farm and a little bug flew in to the ground, and the chickens went plum off, boy oh boy the scawking and the feathers went shy high, so I reached down and I took this scared little Health Care Bug from Government Officials, and I have it safely in my hands. As I searched for a way to help, I asked God to help me build a Reform that is of a moral building block for the better good of man kind and to rebuild the National Security of the United states Of America. And you would never guess what God has allowed me to see. This little blog statement you will find true,
    I wish to give a great big thank you to all my new friends on the Internet for posting FASC Concepts in and for Pay It Forward.
    This building block for a honest Health Care Reform has been a great experience and for any one who did not take part, you have truly missed out on what makes Americans Great. This diversity created by Government Officials has failed and now the eyes of 173 million American People watch as now, for the first time Government Officials sit down together as it should be. The out come is yet to be seen. But they know that a anomaly has been created and it is because of the restructuring of The Constitution, The Bill Of Rights, and The Declaration Of Independence, “has been used in it original created forum” as a factor of a peoples right to undo the amendments of Laws that protected Health Care Companies against the People, over a dollar.
    And I wish to say i write what is needed in order that some how I can undo all the wrong I have done in hopes that the slate will be wiped clean….
    Just because our children do not understand I wish to share this again,
    “For days I worked the word diversity in my mind and it came to me that because of this it is not Americas weakness it is our greatest strength. And this is how I will show you.
    Bill Of Rights –
    The Declaration of Independence-
    United under one forum, builds what is called the Trinity of the Protection Of Laws. This is because these Laws were built by people of faith who gave thanks to God for this wisdom. One would have to see and admire the simplicity of the three as one and at the same time they maintain their independence.”

    On page 100 at our site is the early stages of what is called A Prime Directive for Health Care, so please drop on by and see 173 million peoples views in and for Health Care. And it should be known that this information on page 100 is true and documented in Law and History.
    Henry Massingale
    FASC Concepts in and for Pay It Forward on google look for page 1 American dream official site.

  32. PART 1: Hi everybody, I stopped by to blog again with you all and to show you how the cause and effect of a work of uniting the views of 173 million inter faced sites has forced Government to sign this Bill to Law and now it is where It needs to be, in Court. Officials seek to balance, I seek to un-balance because I want the same as 89% of the People want, a honest Reform.
    I am sorry but this Bill to Law needs to go back to formula. It is not built on equal standing between Social Grace of People and The People.
    First off, somehow there is just to many people that do not understand the function of the Governing Bodies within Government. First, there are around 60 Personal that hold seats that write these Laws, both Democrat and Republican. Then this Bill for Law goes up for a vote and there is around 500 or so Republican and Democrats that vote. The sling talk of this of being the Obama Bill is not Political Correct within the use of words.
    Now lets get to the issues of this Bill of Law being Unconstitutional.
    I agree this new Health Care Law borders on a Constitutional Infringement and within the rush of putting it into action, a balance of dollar issues is lost. The placement of threats against the People is in fact Unconstitutional, as will as force pay.
    Unfortunately the Law Suites against the Bill needs to be restructure within the Concepts Of Constitutional Infringements through the voice of the People it is this Voice that guides the destiny of the Country and the decisions within that Court. .For Example, the weight of 100 million people, and their words in Court bring weight of value to not destroy this Bill of Law but to take it back to formula.
    I must agree with people that this Bill to Law is built within the concept of Social Grace and I do not blame people one bit for the out cry of the burden place against Companies and people that make a great deal of money.
    The use of FASC Concepts 10% per cent on a yearly income that may have been used by Officials is in error because this forum of mine looks into the economic conditions within each home before a placement of payment can go forward, and we believe in the freedom of choice. {As of yet there has been no reply by Officials of Government if they used our Concepts.}
    To show people that I do not belong to any Governing Parties or Insurance Companies, please enjoy the Roll back Concepts of FASC under economy buster at our site.
    This issue we find unfair, According to information, that Tax Payers pay for over 75% of all Medical Cost for Government Officials. As it would seem this Social Grace, is not of a equal standing, as stated in Bill 101 of the New Health Care Laws. Government Officials are Civil Servants According to Law and should not be above the Law of this 10% Force Pay on a Yearly Income. Health care for U.S. Politicians receive the Countrys ,New health care plan to cover all government people (When the President, Senators, … leaves office do they lose their federal employee health care or go on cobra like concept… Make them pay for their own Health care just as we do if they refuse to pay tax, what then ? { you can find this story also at the page for economy buster and the link } …
    My big complaint is that the 10% based, Health Care Forum Bill 101 is lacking inter structure and will not help the economic effected people, and will burden people who all ready have insurance.
    This 1900 pages of Law is untested and only in theory. The fact still remains that because this Health Care System is a $100 Trillion Dollar per year system ,we feel that the Court should place this new Tax Theory { Bill to Law} under Court Supervision for 3 years, because of the failure of Officials to fix the existing Tax System. Without further in site of a balance, only a way to balance the existing in a concept that still eludes practical guidelines. As in I see no back up ideas like {plan B} and it, this Tax Plan is still based on a dollars being a constant flow of cash.
    According to information that there is a plan to lay off City and County workers, that it is considered cheaper to put them on unemployment and Social Services then payroll. What would be more practical is to have every other weekend off or for those who wish, each weekend off. This includes Postal Workers. Also as in Deer field Beach Florida a out side contractor has offered a Bid Per Purposed Contract and lay offs will be against employees under so much time in and on that County job.
    We do understand that Governing Officials are desperate for this Health Care Money, so as a concept of a way to balance trust again between Officials and the People, any Government official that has a Job Concept, they must put up a Bond as a Contractor would to build a project. Once the Job Conclusion has reached a successful point in it creation, Officials receive a refund.
    As stated before, this Health Care Dollar belongs to the People, and I do have this Little Health Care Bug in my Hands. The balance of the views of 250 million people and all this diversity created by Officials is slowly coming to a silence, because I speak for the People and I offer respect to the views in a building block to a Health Care Reform, because of my concept to reform Government within this Health Care Issue, and I would ask the United States Supreme Court to place this Health Care Dollar under Court Supervision until it is deemed worthy of a People right to be a part of or not.
    In 3 years our budget / deficit, can be a positive balance of $1.2 Trillion Dollars. But first we must put forward a Job, work force to strategically rebuild the United States in a anti / war crime forum. To place Factories where they serve that area of city or town.
    I watched for 7 years this failure reach where it is today, ” I saw this”, but there was no intervention by Officials. Officials had their hats handed to them by Scam Artist, and The Arabic Drug Empire, cave dwellers. This issue has not one thing of how I believe, I can only share with you what I have watched for over 30 years take place and there must be a unity by the people to bring a reform to this new Law and to our Government.
    No I am sorry President Obama, Officials need to earn trust again, and to become as one with the People. This is a way to say, look into the economic conditions at persons home before you over burden their lives, with this Bill to Law. This is why you was voted into Office…..
    FASC Concepts in and for Pay it Forward covers the web see why we have become the largest web site in the United States, and we give our thank to the thousands of people who post by us, as one voice.
    on google , yahoo, and aol

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