Individual Mandate Is Constitutional – If You Rewrite the Constitution

House Judiciary Committee Chairman John Conyers (D-MI) was asked on Friday where in the Constitution Congress gets the power to force people to buy health insurance. He said, “Under several clauses, the good and welfare clause and a couple others.”

As it happens, there is no “good and welfare clause” — which Conyers should know, as both judiciary chairman and a lawyer. But even if you excuse his casual use of constitutional language, what he probably means — the General Welfare Clause of Article I, Section 8 — is not a better answer. What that clause does is limit Congress’s use of the powers enumerated elsewhere in that section to legislation that promotes ”the general welfare.” (So earmarks are arguably unconstitutional, though you can make a colorable argument that, when considering a pork bill as a whole, with all parts of the country getting something, that monstrosity is collectively in “the general welfare” — maybe.) In any event, the General Welfare Clause doesn’t give Congress any additional powers — and I’d be curious to know what the other “several clauses” are.

Conyers also noted that, “All the scholars, the constitutional scholars that I know . . . they all say that there’s nothing unconstitutional in this bill and if there were, I would have tried to correct it if I thought there were.” Well, Mr. Conyers, to start let me introduce you to three constitutional scholars — not fringe right-wing kooks or anything like that, but respected people who publish widely — who think Obamacare is unconstitutional. Now will you try to “correct” the bill?

For a survey of the various constitutional issues attending Obamacare, see Randy Barnett’s oped from Sunday’s Washington Post.

CP: Cato's blog