The SOS begins her dissection of the Reid Health Care Bill: Reid on Constitutional Law

Several weeks ago I wrote two posts dealing with the constitutionality of Obamacare based upon the remarks of Mr. Hoyer (D. Md.) and Ms. Pelosi (D. Ca.).  Mr. Hoyer insisted that the mandate that all have insurance was clearly constitutional based upon Congress’s power to tax, while Ms. Pelosi insisted the mandate was constitutional based upon Congress’s power to regulate interstate commerce.

But, I have now found the definitive treatise on the subject.  Not only have I found it, but, I have found it in a most unusual place…the bill itself!  The Senate Bill released by Sen. Reid (D.Nv.) yesterday actually devotes 3 pages (of the svelte 2074 page bill) to an explanation of why the Senate believes it has the power to mandate that all have insurance.

Sen. Reid has decided to side with Ms. Pelosi on this one…the mandate is constitutional based upon Congress’s power to regulate interstate commerce.  (Personally, I believe that is the weaker of the two “theories”, but, what the hey.)

Should you be so inclined, you can find Reid’s alleged justification beginning at page 321.

In all my years of legal practice reading countless laws, I have never seen Congress within a bill explain their view of the constitutionality of the very bill they are passing.  This portion of the Reid bill almost reads like the Summary of Argument section that one would find in any brief filed in the Supreme Court.

But, the real laugher is that Section1501(a)(3) even cites a Supreme Court opinion which is claimed to support their position.  The only problem is that the case cited doesn’t support their position.  All that U.S. v. SouthEastern Underwriters Assn. holds is that because insurance companies do business across state lines, Congress has the power to regulate insurance companies under their power to regulate interstate commerce.  But, that’s not the question.

The question is whether Congress, under the interstate commerce clause, can mandate that all Americans purchase a product simply because that product is sold across state lines.  If the answer is “yes”, Congress could mandate that all Americans purchase everything from bicycles to wheel barrows.  At the risk of putting you to sleep, I will say again…Congress has the power to tell Florida that it must let Georgia peaches be sold in Florida, but using that power, it cannot then tell all Floridians that they must buy peaches.

Reid on Constitutional Law fails miserably in understanding that distinction.

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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. white17 on November 19, 2009 at 6:19 pm

    Interesting they choose that tack considering Congress for years has forbidden health insurance to be sold across state lines.  Furthermore,  unless the procedure goes a lot further than I think, my colonscopy sure doesn't cross state lines.

  2. Dimsdale on November 20, 2009 at 5:14 am

    George Will has an excellent take on why the Democrats own arguements defending "choice" and other unlikely rights actually work against them in this legislation, and may actually render it unconstitutional.  Cutting off their own noses, so to speak, with regard to coercing people to buy the government's lousy product under threat of fines or prosecution.

  3. Dodie on November 20, 2009 at 9:04 am

    I just tried to send an e-mail to Lieberman begging him to vote against this bill and my message would no go through.    I have been attempting to call his office with no success.    Any suggestions?

    • Steve McGough on November 20, 2009 at 10:46 am

      Have your friends, family and neighbors call and write e-mails. Then have them call more friends, family and neighbors and do the same thing. Then keep doing it.

      Then start calling the Hartford Courant and other media outlets and ask them why they are not reporting stories and doing research like the Sound Off Sister is doing. Does the Courant, WFSB, WTIC or WTNH have any reporters assigned to read the bill and tell us what is in it?

      The AP has 11 reporters available to "fact check" Palin's new book, but how many do they have reading the health care reform legislation that is out there? Call AP and ask them.

      Have your friends, family and neighbors ask them too. Why is the media not reading the bill and telling us what is in the bill? They seem lazy, willing to snag up AP, Reuters, CNN and FoxNews stories that mostly include talking points from the DNC and congress-critters.

      They should be simply reading the bill and putting everything into plain language for us. Demand it.

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