Constitutional Sleight of Hand from George F. Will

In Sunday’s Washington Post, conservative columnist George F. Will takes on the constitutionality of the so-called “individual mandate” of the health care reform law not by dealing with the merits, but by mixing up constitutional provisions, perhaps hoping that no one will notice.  Apparently of the belief that Congress went too far in requiring all individuals to buy health insurance or pay a penalty tax, Will urges the courts to be “engaged” enough to constrain congressional overreaching.  According to Will, borrowing from a Texas judge’s description of that state’s Constitution, the U.S. Constitution is “’irrefutably framed in proscription’” and “’declares an emphatic ‘no’ to myriad government undertakings,’ no matter how much a majority might desire them.”  In support, Will cites “the first words of the Bill of Rights: ‘Congress shall make no law . . . ‘”

But Will’s constitutional prestidigitation should not go unanswered.  Will’s Bill of Rights quote is not a general limitation on the powers of Congress, but instead is an excerpt from the First Amendment, which contains an express limitation on the power of Congress to trample on certain specified rights:  religious liberty, freedom of speech and of the press, the right to peaceably assemble, and the right to “petition the Government for a redress of grievances.”  None of this has anything to do with the health care reform law or the constitutionality of the minimum coverage provision.

Significantly, Will ignores what is in fact the Constitution’s first substantive provision:  Article I, which creates the Congress, vests it with “all legislative powers herein granted,” and then enumerates specific grants of powers (not limitations), using these very clear, affirmative terms: “The Congress shall have Power To . .  .” (Emphasis added).  Among the expressly enumerated powers of Congress set out in Article I are the powers to “regulate Commerce . . . among the several States,” “lay and collect Taxes,” “provide for the . . . general Welfare of the United States,” and “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

The limitations placed on congressional power by the First Amendment — to infringe upon religious freedom or the right to free speech, for example — do not negate the affirmative grants of congressional power in Article I, nor do they turn the Constitution into a charter of “proscription” upon the federal government.   George Will is of course entitled to his own opinion about whether the minimum coverage provision of the health care reform law exceeds the enumerated powers of Congress under Article I, but he isn’t entitled to his own Constitution.

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For a discussion of why enactment of the health care reform law, including the minimum coverage provision, was well within the constitutional authority of Congress, please see CAC’s Issue Brief, “The States, Health Care Reform, and the Constitution,” here.  In addition, please also see CAC’s brief defending the constitutionality of the health care reform law filed on behalf of State Legislators from 27 States in federal court in Florida.