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The Record - Opinion: Constitutional Malpractice


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By: Rep. Scott Garrett

Last week, a U.S. District Court Judge in Virginia landed a direct blow to the Patient Protection and Affordable Care Act, perhaps unraveling the federal health care law at the seams before it has the chance to be fully implemented. Ruling in a case brought by Virginia Attorney General Ken Cuccinelli, Judge Henry Hudson struck down the individual mandate provision of the health care law as unconstitutional.

Citing the Interstate Commerce and Necessary and Proper Clauses, Hudson concluded that the individual mandate requiring people buy health insurance or face a fine is an unprecedented expansion of federal power that is "neither within the letter nor the spirit of the Constitution."

In his official court ruling, Hudson wrote, "Because an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. … Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce."

As someone who remains adamantly opposed to the law, particularly the individual mandate provision, I feel Hudson's ruling was welcome news. It confirmed what I have been saying for the last two years -- President Obama's health care package isn't just bad public policy, it's unconstitutional.

Expansive powers

As countless constitutional scholars have pointed out, our founding fathers never envisioned a federal government with such expansive powers. Forcing Americans to purchase health insurance under penalty of law represents an unprecedented power grab by the federal government and would set a dangerous precedent for the future.

If we were to give Congress this power under the Constitution, there would be virtually no limit on its authority to compel our country's citizens to comply with the whims of future congressional majorities.

The case in Virginia is just one of several cases in federal courts across the country challenging the constitutionality of the health care package. I expect the final word will come from the Supreme Court, which will no doubt find it unconstitutional.

Nevertheless, one has to wonder whether this process is really the appropriate way for us to be governing the country. In other words, don't members of Congress have a responsibility to determine the constitutionality of legislation before passing it into law?

Every two years, my colleagues and I take an oath to support and uphold the Constitution of the United States. Unfortunately, not every member of Congress truly embraces the oath of office with the seriousness it deserves. As a result, the House has been corrupted by a false sense of power, a sense of power that has caused it to ignore the proper limits imposed on it by the Constitution.

Indeed, it's been this failure to respect and uphold the principles enshrined the Constitution that has caused the House of Representatives to hastily pass legislation without first considering the very document that grants us the authority to do so.

As founder and chairman of the Congressional Constitution Caucus, I believe it's time to change the culture of constitutional malpractice that plagues the House of Representatives. I believe it's time for us to return to our roots, return to a renewed focus on the vision our founding fathers had for the United States of America. To that end, I have introduced a resolution in the House that would require all legislation to appropriately cite an enumerated power in the U.S. Constitution.

Justification required

Here's how it works.

It would require all bills and amendments to contain a statement appropriately citing a specific power granted to Congress in the Constitution as a basis for enacting the law. If a bill did not offer sufficient constitutional justification, a member could object to the bill's consideration.

As a result, each side would have 10 minutes of debate followed by a vote on whether or not to table the objection and move to consideration of the bill or amendment.

Most important, my rule would not allow a member of Congress to improperly cite the vague, and oftentimes abused, General Welfare Clause or the Necessary and Proper Clause -- as was the case with the president's health care package.

I do not pretend to think my House rule will fix all that ails the House of Representatives and its penchant to ignore the true intent of the founding fathers. But, at the very least, it would force us to debate not only the constitutionality of legislation, but the proper role of government.

On Jan. 5, my colleagues and I will once again take an oath to support and uphold the Constitution. Implementing this House rule is the first step towards honoring that oath and making good on the promise Republicans made in the "Pledge to America."

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