Day: December 31, 2010

The Constitution And Health Care: “Necessary And Proper” Clause At Work!

Article 1, Section 8 of the Constitution allows the Congress very broad authority to pass laws seen as “necessary and proper” for the “general welfare”.

Federal District Court Judge Henry Hudson of Virginia invalidated the “necessary and proper” clause in stating that the insurance mandate of the health care legislation is unconstitutional. At the same time, two other federal district court judges have upheld the insurance mandate.

The argument of the government is that failure to buy insurance passes the expenses on to the government, hospitals, and the privately insured, and that puts an unfair burden on others because of the irresponsibility of individual citizens. Also, the insurance mandate prevents discrimination by insurers against those with pre-existing medical conditions, an important part of the new legislation.

The whole controversy reverts back to the great Chief Justice John Marshall, who established the broad powers of Article 1, Section 8, in the famous McCulloch V. Maryland case of 1823, having to do with the constitutionality of the National Bank.

As Marshall wrote: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”

The Health Care legislation will probably reach the Supreme Court in the year 2012, possibly in time for the Presidential Election of 2012, which, if won by President Obama, will surely institutionalize the Health care legislation with some fine tuning in the meantime.

Realize that the furious opposition to the Health Care legislation represents the similar reaction to the Social Security Act of 1935 and the Medicare Act of 1965, but which has been often forgotten because of the universal support of both laws over time, the basis of the safety net that makes America a more humane society, even if the opponents have worked to prevent such a situation!