Health Care Bill Constitutional?

This past week saw a number of people question the constitutionality of President Barack H. Obama’s plan to reform health care in the United States.1 Michael Connelly, a retired attorney and Constitutional Law instructor, wrote that the bill is “a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred”:

Caduceus_staff Well, I have done it! I have read the entire text of proposed House Bill 3200: The Affordable Health Care Choices Act of 2009. I studied it with particular emphasis from my area of expertise, constitutional law. I was frankly concerned that parts of the proposed law that were being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.

To begin with, much of what has been said about the law and its implications is in fact true, despite what the Democrats and the media are saying. 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, free abortion services, and probably forced participation in abortions by members of the medical profession.

The Bill will also eventually force private insurance companies out of business and put everyone into a government run system. All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals. Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.

However, as scary as all of that is, it just scratches the surface. In fact, I have concluded that this legislation really has no intention of providing affordable health care choices. Instead it is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated. If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.2

Similarly, Jane M. Orient’s article on Campaign for Liberty declared:

The biggest question of all is why are we even discussing the details, while begging the biggest question of all: Does Congress have the Constitutional authority to do any of the things that are proposed as “health care reform”?

Where does it get the right to outlaw existing private arrangements and contracts? To force Americans into government dependency for paying for their medical care? To set medical standards and prices for medical services? To manage one-sixth of the economy? To decide for individuals what they can afford? To delegate enormous authority over people’s lives to an executive agency to avoid political accountability?

Well, of course there’s Medicare, the big, popular precedent. As Jonathan Swift pointed out in Gulliver’s Travels, if a wrong can legally be done once, precedent assures that it can be done again.

If a one-vote, one-time democracy has the right to turn American medicine over to czars like Zeke Emanuel, then town halls might as well be an orchestrated circus to give homage to our elected nonrepresentatives.3

Whether or not the Supreme Court would strike down the constitutionality of such a bill is questionable.

Earlier, it was noted that the debate about health care reform is often couched in collectivist terms and that medical collectivists propose a “scientific discipline” is needed “to bridge the capabilities of the medical profession and the best interests of patients and society.”4

What those health care “best interests” are for patients and society remain unclear.

But one thing is clear, you likely won’t have any input into the long-term consequences of this bill in society. Someone else will make that social decision for you.


  1. McCullagh, Declan. “Is Mandatory Health Insurance Constitutional?” 21 Sep 2009. CBS News. 27 Sep 2009.
  2. Connelly, Michael. “The Truth About the Health Care Bills”. 12 Aug 2009. Connelly. 27 Sep 2009.
  3. Orient, Jane M. “Town Halls: If Congress Really Cared What You Think. . .” 22 Sep 2007. Campaign for Liberty. 27 Sep 2009.
  4. See Health Care Collectivists.

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  1. S.Faux’s avatar

    Great piece. I am convinced the health care proposals coming from the Democrats are not only anti-Constitutional, but will further collapse the economy. It won’t be insurance companies that are driven out of business, but it will be all of us in one way or another. Unfortunately, the health of freedom does not seem to be a concern by those who are ramming “health care” down our throats.

  2. Sam B.’s avatar

    The arguments that the bill would be unconstitutional are, frankly, pretty weak. Mr. Connelly would be far more convincing if he cited the provisions of the bill that provide for rationing (yes, there will effectively be health care rationing, but there already is), and Ms. Orient would be way more convincing if she provided some evidence that outlaw existing private arrangements and contracts. I’m not really up for taking their words for it.

    And, assuming that their parades of horribles are correct, they need to take the next step and explain why such things are unconstitutional. The assertion is nice, but what in the Constitution prevents the rationing of health care? Or the setting of medical standards and prices? You can certainly make an argument that such things are bad things, but these people aren’t making that argument.

    Instead, they’re asserting (1) that the bill contains bad things, and (2) that those bad things are unconstitutional. What they are not doing is (1) pointing to the bad things in the bill and (2) showing how the Constitution prohibits the government from doing said bad things.

  3. Greg’s avatar

    Sam – If you checked his post, Mr. Connelly cited a number of provisions in the bill that are questionable. Some of these provisions will change the separation of powers in government and take away individual rights granted in constitutional amendments. Whether or not the bill is found unconstitutional, creating 53 Additional Government Agencies (Ed. – link no longer available at for Health Care Reform seems like part of the plan to socialize American institutions for the so-called welfare of citizens by “due process of law”. (“Socialism – The Royal Road to Communism“. Inspired Constitution. 28 Sep 2009.) If you aren’t aware of this plan, see the History of Socialized Medicine in America.

  4. Dave C.’s avatar


    This is one of the most important blog posts I have read all year, including all the evolution and secular humanism haranguing at

    Connelly’s words are very sobering. To those who might disagree with Connelly, may I point out that in my home country of Canada there is currently a debate going on over whether private health care facilities have the right to exist. Yes, in the past the Canadian government has squashed people’s right to get alternative, non-government sponsored health care in Canada. You start a private pay facility in Canada and the gov will shut you down! However, private clinics keep popping up in my home province of British Columbia. Now there is a suit going on and the Canadian supreme court will decided whether British Columbians have a right to purchase private care. This is the 21 st century. My goodness!

    I’ll also add that as far as cost is concerned, healthcare costs are skyrocketing in countries with socialized care (so said an international healthcare researcher from Europe who has investigated costs around the world at a forum I attended). So people should not think that Obama care is going to solve the issue of rising cost. Also, Obama is not serious about controlling costs because his reform is basically insurance reform; it has nothing to do with reforming healthcare delivery which is where costs need to be controlled.

    Paul was right – these are perilous times.

  5. Greg’s avatar

    Thanks Dave C. Mr. Connelly’s review questioning the constitutionality of the health care bill is important. It would appear that in another rush to push through legislation, the President and his supporters in Congress seem to have other plans for U.S. citizens. An increasingly powerful executive branch in government is getting close to an “imperial presidency.”

  6. Tony’s avatar

    Agreed with Dave that this is an incredible issue.

    I have finally decided where I stand on this bill after having tried to look at it objectively to the best of my ability, specifically talking to LDS democrats who support the bill and LDS moderates and republicans who were against it. I’m glad that I was able to weigh both sides and see the arguments and counter-arguments on both side.

    I have decided that I stand with Greg on this one. I am, by the way, a moderate.

  7. Greg’s avatar

    Tony – I hope this information is useful.

  8. Darren’s avatar

    It is utterly amazing to me, that we as a free nation, is debating whether or not the government has a right to socialize us. There doesnt seem to be any disagreement that this is a massive socialization of us, so why in the HELL are we even arguing that this is bill has some constitutinal frame work.

    The constituation was put into place to protect against this exact circumstance. You cant argue that becuase socialization seems good the constituaion allows it. PHOOEY.

  9. JW’s avatar

    — “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, free abortion services, and probably forced participation in abortions by members of the medical profession.” —

    You sir are an outright liar.

    I’ve read the bill and none of the things you mentioned are in there.

    Why must people continue to make things up and distort the truth?

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