View Full Version : Not quite understanding the word mandate

10-25-2009, 06:39 PM
posted at 8:20 am on October 24, 2009 by Ed Morrissey
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After writing several posts about the lack of constitutional authority of Congress to force Americans to buy health insurance or face fines and imprisonment, I assumed people understood the nature of the argument. Kathy Kattenburg’s response to my post yesterday on the topic demonstrates that we need to make this a little more clear. She links back to another blogger offering a strawman argument that appears to confuse Kathy:

I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:

It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the “Framers” certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the “necessary and proper” clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Well, our argument has never been that Congress cannot pass laws, or that Congress cannot pass laws without some absurdly specific mention in the Constitution. Quite obviously, Congress has the power to CONTINUED (http://hotair.com/archives/2009/10/24/not-quite-understanding-the-word-mandate/)

10-25-2009, 06:59 PM