Quick Fact: Beck advanced dubious claim that "[n]owhere in the Constitution can you find" authority for health reform legislation

Written by Zachary Pleat

Published

During his Fox News show, Glenn Beck claimed that "[n]owhere in the Constitution can you find any of this" while he pointed to two stacks of paper representing the Senate and House health care bills. Contrary to Beck's suggestion that Congress does not have the authority to enact health care reform legislation and the implication that health reform is unconstitutional, numerous legal experts have disputed these claims, including University of California, Irvine law professor and Constitutional expert Erwin Chemerinsky, who explained that “there is no doubt that bills passed by House and Senate committees are constitutional.”

From the November 19 edition of Fox News' Glenn Beck:

BECK: You know what kills me is the people in Congress, they're sworn to protect and defend this. They write this, they've never read these, and I guarantee ya, they haven't read this either. Maybe they should. Because, this is not in this. Nowhere in the Constitution can you find any of this.

Fact: Chemerinsky explained that constitutionality of reform proposals supported by “unbroken line of precedents stretching back 70 years”

As Media Matters for America has previously noted, University of California, Irvine law professor and constitutional expert Erwin Chemerinsky explained in an October 23 Politico piece that, regarding the “authority to compel people to purchase health insurance or pay a tax or a fine,” “Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states.” From Chemerinsky's Politico piece:

Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America's health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.

Some who object to the health care proposals claim that they are beyond the scope of congressional powers. Specifically, they argue that Congress lacks the authority to compel people to purchase health insurance or pay a tax or a fine.

Congress clearly could do this under its power pursuant to Article I, Section 8 of the Constitution to regulate commerce among the states. The Supreme Court has held that this includes authority to regulate activities that have a substantial effect on interstate commerce. In the area of economic activities, “substantial effect” can be found based on the cumulative impact of the activity across the country. For example, a few years ago, the Supreme Court held that Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce. [Politico 10/23/09]

Fact: Amar debunks arguments that reform violates Fifth Amendment

According to Slate.com's Timothy Noah, Yale law professor Akhil Reed Amar and Fordham Law School dean William Treanor debunked conservatives' argument that the individual mandate could be considered a “taking” in violation of the Fifth Amendment:

[A]ccording to Akhil Reed Amar, who teaches constitutional law at Yale, the case law does not support [Peter] Urbanowicz and [Dennis] Smith [both formerly of the Department of Health and Human Services]. “A taking is paradigmatically singling out an individual,” Amar explains. The individual mandate (despite its name) applies to everybody. Also, “takings are paradigmatically about real property. They're about things.” The individual mandate requires citizens to fork over not their houses or their automobiles but their money. Finally, Amar points out, the individual mandate does not result in the state taking something without providing compensation. The health insurance that citizens must purchase is compensation. In exchange for paying a premium, the insurer pledges (at least in theory) to pay some or all doctor and hospital bills should the need arise for medical treatment. The individual mandate isn't a taking, Amar argues. It's a tax.

But how can it be a tax if the money is turned over not to the government but to a private insurance company? William Treanor, dean of Fordham Law School and an expert on takings, repeated much of Amar's analysis to me (like Amar, he thinks a takings-based argument would never get anywhere), but instead of a tax he compared the individual mandate to the federal law mandating a minimum wage. Congress passes a law that says employers need to pay a certain minimum amount not to the government but to any person they hire. “The beneficiaries of that are private actors,” Treanor explained. But it's allowed under the commerce clause. “Minimum wage law is constitutional.” So, too, then, is the individual mandate.

Fact: Balkin debunks claim that Tenth Amendment prohibits reform

Responding to the arguments that health care reform violates the Tenth Amendment -- which reserves all power not delegated to the federal government to the states or the people -- Yale law professor Jack Balkin has noted that “the safeguards of federalism are political,” not judicial, and that state governors do not have the power to nullify federal laws or “violate federal laws or interfere with federal employees.”