Attorney Nathan Tucker writes:
While the thought that the Constitution actually limits the power of Congress to enact legislation may be foreign to some Democrats, the framers of the Constitution intended for the federal government to be limited to the powers that are specifically enumerated, or listed, in the text of the document.
He continues:
Out of the 17 named powers given to Congress in Section 8 of Article 1, however, none mentions anything about heath care, insurance, doctors, medical treatment, or anything approaching an enumerated power that would allow Congress to legislate our health.
Tucker says that Democrats 鈥減oint to two constitutional provisions as their grant of authority to enact health-care legislation鈥�: the 鈥済eneral welfare鈥� clause and the Commerce Clause.
Tucker disputes this first claim:
The term 鈥済eneral welfare鈥� appears twice in the Constitution, once in the Preamble and another time in the 鈥渢ax and spend鈥� clause. The Preamble to the Constitution, however, has never been considered a grant of power to the federal government.... The tax and spend clause, however, is an enumerated power given to Congress in the Constitution.... [But] [t]o read the term 鈥済eneral welfare鈥� in the clause to be a broad grant of authority to Congress to tax for whatever purposes it deems are in the general welfare of the country would be to make a mockery of the Constitution.
He also takes issue with the second:
The [Commerce] clause...was simply meant to prevent trade wars between the states, a common occurrence under the Articles of Confederation..... As originally understood, the Commerce Clause was intended to create a 鈥渇ree trade zone鈥� throughout America, only giving Congress the power to strike down state laws that discriminated against the buying, selling, and transportation of out-of-state goods.
Tucker warns:
But the health-care legislation goes even further than the court has previously upheld by requiring an individual person to engage in economic transaction with a private company (i.e., buy health insurance) or face a fine. That is an unprecedented and unconstitutional power grab by Congress that, if upheld, would leave no check on Congress鈥檚 power.
He urges:
It is time for the Supreme Court to once again hold that the Constitution imposes restrictions on Congress and to close the general welfare clause and Commerce Clause expressways by which the federal government has become one of infinite powers rather than finite authority.
Nathan W. Tucker is an attorney in Davenport, Iowa, and the author of
