Harris Sherline: Where Are the Lawyers on Health Care?

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By Harris R. Sherline

Many in Congress should know better than to create and adopt reform legislation that is unconstitutional

Is the health-care reform constitutional? How about taking over General Motors and Chrysler, insurance giant AIG, the banks or any of the other myriad actions taken by President Barack Obama, his administration and Congress since he became president?

The number of lawyers in Congress varies over time, but in general it’s a high percentage of the membership, ranging from 55 percent to 80 percent of the House and about 60 percent of the Senate. That translates into 60 senators and 250-plus representatives, for a total of more than 300.

With all the lawyers in Congress, one wonders how it is that they manage to pass legislation that violates the U.S. Constitution. Or could that possibly be the reason? That is, since they’re attorneys, they believe they can ignore the Constitution with impunity.

Sen. Orrin Hatch, R-Utah; former Ohio Secretary of State J. Kenneth Blackwell; and Kenneth Klukowsi, a fellow and senior legal analyst with the American Civil Rights Union, made the case in a Wall Street Journal editorial that the health-care bills working their way through Congress are unconstitutional for the following reasons:

» “First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate.”

» “A second constitutional defect of the (Harry) Reid bill passed in the Senate involves the deals he cut to secure the votes of individual senators.”

» “A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations.”

According to the Congressional Budget Office, “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Steve Elliott, president of the Grassfire.org Alliance, noted: “Never before in U.S. history has such a federal mandate been imposed on the people of the United States! Why? Because the individual mandate is unconstitutional.”

Michael Connelly, a retired constitutional attorney, observed: “The law does provide for rationing of health care, particularly where senior citizens and other classes of citizens are involved, free health care for illegal immigrants ...”

Connelly also said: “If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed. The first thing to go will be the masterfully crafted balance of power between the executive, legislative and judicial branches of the U.S. government. ... This legislation also provides for access, by the appointees of the Obama administration, of all of your personal health-care information (a direct violation of the specific provisions of the Fourth Amendment to the Constitution), your personal financial information, and the information of your employer, physician and hospital. ... The Fourth is supposed to be a protection against unreasonable searches and seizures. You can also forget about the right to privacy. That will have been legislated into oblivion regardless of what the Third and Fourth Amendments may provide.”

As the health-care legislation is proposed, Connelly further notes: “If you decide not to have health-care insurance, or if you have private insurance that is not deemed acceptable to the health choices administrator appointed by Obama, there will be a tax imposed on you. It is called a tax instead of a fine because of the intent to avoid application of the due process clause of the Fifth Amendment. However, that doesn’t work because since there is nothing in the law that allows you to contest or appeal the imposition of the tax, it is definitely depriving someone of property without the due process of law.”

Finally, led by South Carolina Attorney General Henry McMaster, the attorneys general of at least 10 states are already lining up to contest the health-care bill on constitutional grounds. Questioning the permanent exemption granted to Nebraska to pay for an expansion of Medicaid, McMaster asks, “Why is it that Nebraska pays no taxes, pays no money as a state while the other 49 states do?”

So, with such a high percentage of attorneys in Congress, how is it that they can create and adopt legislation that is so clearly unconstitutional? Do they actually believe that no one will challenge the health-care bill in federal court? Or is the legislation merely a tactical maneuver in a larger strategic plan to get health care passed in any form, lock it in then continue to modify it over future years — a la Social Security and Medicare?

— Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who has lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his blog, Opinionfest.com.

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