David Rivkin on Fox and Friends, October 25, 2009
Fox: House Majority Leader Steny Hoyer says a clause in the Constitution gives Congress the power to force Americans to buy health insurance. Our next guest, David Rivkin, knows a bit about the Constitution, and he says that this is not exactly the case.
David, is this allowed under the General Welfare clause Article One, Section Eight of the Constitution?
Rivkin: No, it is not. And the problem is not only that this is not supported by any specific authority to Congress. The problem is that, if the government can do this, the government can then require that you purchase a health club membership, mental wellness classes, even require you to buy a car every couple of years.
To underscore, this is a fundamental change in our Constitutional Architecture. The Framers intended our government to be one of limited and enumerated powers. The states were meant to have general police powers.
Fox: The CBO says, “The government has never required any citizen of the United States to buy any good or service as a condition of lawful residence in the USA.” Is there another provision of the Constitution that will require people to buy health insurance?
Rivkin: It is not anywhere in the Constitution. This activity can be done at the state level. People often think about the Bill of Rights as an umbrella to protect their general liberty; however, the Framers’ ultimate goal was to ensure the diffusion of power. This means organizing different levels of authority so that no single branch of government has too great of power. This particular decision has the potential to take us in a direction we were never meant to go.
Fox: Just to give folks an idea of what we are talking about, here is Article One, Section Eight of the Constitution: The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.
Hoyer also compares this to the requirement to pay taxes.
Rivkin: This is not a tax. Tax is imposed on income from economic activities. Remember, this is not imposed as a result of any activity. The mandate is imposed merely because you exist.
Fox: If people were to challenge this law, would it go all the way to the Supreme Court?
Rivkin: It will certainly go to the Supreme Court as soon as it passed. Anyone subject to this mandate could go to the District Court and seek the judgment that this is unconstitutional.
Fox: So, as soon as this passes through Congress another battle looms…