Debate Over Constitutional Legitimacy of Health Care Reform Heats Up

By: Guest Authors

Are health care mandates constitutional? Constitutional Scholar Rob Natelson responds with a resounding ‘no’ in his rebuttal to claims made by Akhil Reed Amar. “The claim that the Founding Fathers would have thought the Constitution allows Congress to impose health care mandates is little short of absurd.”

Los Angeles, California (TAC) January 20, 2010 — The Debate over whether or not health care mandates are permissible under the Constitution reached new heights last week when Professor of Law and Political Science at Yale University, Akhil Reed Amar, published a controversial op-ed in the Los Angeles Times. Amar’s article titled “Constitutional objections to Obamacare don’t hold up” drew immediate rebuttal from fellow scholars, including Rob Natelson, Professor of Constitutional Law, Legal History, and Advanced Constitutional Law.

One of the key disputes in the health care reform debate is whether mandates fit within the limits of Federal power as enumerated by the Constitution. According to Amar’s op-ed, this authority “clearly” come from the Commerce Clause in Article I, Section 8 of the Constitution, which he said gives the federal government authority “to address matters that have significant spillover effects across state lines or international borders.”

Natelson rebuked this, and many other of Amar’s points in an article published by the Tenth Amendment Center, a Los Angeles based think tank.

“The interstate commerce clause gave Congress power to regulate interstate commerce, not any “matters that have significant spillover effects across state lines,” wrote Natelson. “The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the federal government regulate any activity with interstate spillover. Instead, the delegates limited Congress to enumerated powers, such as the power over interstate commerce. The Bill of Rights constricted those powers further. In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states,” he continued.

Natelson was joined by other leading Constitutional Scholars in rebuking Amar’s position. According to Kevin Gutzman, an expert in the Middle Period of American history (1760-1877) and the New York Times bestselling author of The Politically Incorrect Guide to the Constitution, neither Amar’s “reading of the commerce clause nor his understanding of the taxing clause have anything much to do with” the Constitution, and such arguments promote “virtually unlimited power in the formerly Federal Government.”

Kurt Lash, James P. Bradley Chair of Constitutional Law at Loyola Law School, also took exception, and focused on Amar’s position that the 14th Amendment “charges Congress with protecting basic human rights,” and that “healthcare is such a right.” In response, Lash said, “Well, I love Akhil like a brother, but this assertion is unsupported by either the text or history behind the Fourteenth Amendment.” He continued by adding that a primary drafter of the 14th refused to support such power “due to concerns about federal interference with matters reserved to the states under the Tenth Amendment.”

Natelson concluded by suggesting that even Amar was potentially skeptical of his own claims because of his repeated used of the word “clearly.” Natelson said, “As any competent constitutional scholar will tell you: “Beware the word “clearly!” When a judge or a lawyer claims that a disputed law is “clearly” within a constitutional power, it often means he suspects it’s probably not – but for some reason he’s arguing that it is.”

About the Tenth Amendment Center:
The Tenth Amendment Center, a Los Angeles-based think tank founded in 2006, acts as an educational forum on issues related to the 10th Amendment and Constitutional governance.

For more information on this issue, or to arrange an interview, please call Director of Media, Bryce Shonka at 213-935-0553 or email

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