“Pelosi on Constitutional Law”

I wrote a post last week entitled “Hoyer on Constitutional Law” which dealt with the constitutionality of the power of Congress to mandate that all Americans purchase health insurance.  Rep. Steny Hoyer (D. Md.), and Sen. Patrick Leahy (D.Vt.) have opined that the power to mandate the purchase of insurance comes from that portion of Article I, Section 8 of the Constitution where Congress is granted power to “lay and collect taxes…to…provide…for the general welfare…”.   I strongly disagree with Rep. Hoyer’s and Sen. Leahy’s opinion, but, now, there is a new twist.

Last week, Speaker of the House Nancy Pelosi (D. Ca.) was asked the same question.

Pelosi dismissed the question by saying: “Are you serious?  “Are you serious? “

Deciding that “are you serious, are you serious” wasn’t a good answer, Pelosi’s staff issued the following statement:

Congress derives the authority to mandate that people purchase health insurance from its constitutional power to regulate interstate commerce.

Article I, Section 8 of the Constitution does indeed give Congress the power to “regulate commerce … among the several states”, but using that section to support a mandate that all Americans purchase insurance is equally erroneous.

Here’s an example that I’ve used before to demonstrate how the interstate commerce clause of the Constitution will not, under any circumstances, support a mandate to purchase insurance.

Under the interstate commerce clause Congress could definitely pass a law requiring that Florida allow peaches grown in Georgia to be sold in Florida.  And, under that clause, Congress could definitely pass a law requiring that Florida allow insurance companies from Georgia to sell their policies in Florida.  But, that is the extent of the power.

Just as Congress, using the above example, could not then require everyone in Florida to buy peaches, it cannot then require everyone in Florida to buy insurance.

I know it’s too much to ask that everyone in Congress read the Constitution, but, is it too much to ask that everyone in Congress get on the same page?

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. Dottie on October 26, 2009 at 3:18 pm

    Barbara,  We are blessed to have you and your brother on our side.  Your expertise and willingness to do all the reading that Congress should be doing helps me  understand what the absence of ethics and the pursuit of power has done to the Legislative and Executive branches of our government.

    To quote a certain sound bite:  " I worry."



  2. donh on October 27, 2009 at 2:49 am

    This grotesque violation of the constitution plants the seeds to a new level of corruption. Every well connected business that pays enough to a politician's election can now reap guaranteed sales of its products by power of law.  Politicians will now be able to force the purchase of any product they dictate at a price of their own choosing. Tyrrany is at hand. Recall the Ice Trust Scandal that ruined the political career of NY Governor Van Wyck.  Large shares of stock in the Ice trust were given to politicians who in return passed laws that protected the monopoly from free market competition. Competitors to the Ice trust could not unload their cargo at NY Piers. The price of ice doubled in NYC and created a public health hazard.  The corruption we are now witnessing far exceeds the worst dealings of Tammany Hall.

  3. Dimsdale on October 27, 2009 at 4:50 am

    "Erroneous" is simply too kind a term, SOS.   Pelosi is flat out lying, and hopes that the liberal teacher's unions have dumbed down the American public sufficiently that a sentence full of polysyllabic words will make their eyes glaze over, ignore the travesties Pelosi and her ilk are pulling on us, and that we will simply go back to the network pablum on television.


    If Pelosi and her Congressional acumen are any indication, I seriously wonder if Congress itself hasn't been dumbed down.


    I know, I know: don't sugarcoat it!  😉

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