Chemerinsky on the Constitutionality of ObamaCare: Kinda Right on the Constitution, Wrong on Liberty

In today’s LA Times, Dean Chemerinsky argues that nothing illegal about requiring Americans to buy medical insurance.

Chereminsky finds that common objections to the Constitutionality of ObamaCare are flawed. First:

Congress has broad power to tax and spend for the general welfare. In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress’ power. The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid.

Congress has every right to create either a broad new tax to pay for a national healthcare program or to impose a tax only on those who have no health insurance.

While Chereminsky is correct that modern Supreme Court caselaw would support ObamaCare under the Commerce Clause Jurisprudence, that is not to say it is Constitution. The fact that the Supreme Court has not struck down a taxing or spending program in 70 years is more of a reflection of the Court’s departure from the original meaning of the commerce clause than an assertion on what the Constitution actually means. I have blogged about this topic before. In my mind, what is Constitution and what ought to be constitutional are one in the same.

Second, Chereminsky writes:

The claim that individuals have a constitutional “right” to not have health insurance is no stronger than the objection that this would exceed Congress’ powers. It is hard to even articulate the constitutional right that would be violated by requiring individuals to have health insurance or pay a tax.

So it is easy to articulate a constitutional right to abortion, sodomy, same sex marriage, contraceptives, assisted-suicide, and a host of other progressive causes? But it is unfathomable to imagine that the Constitution prohibits a person from being forced to purchase a form of health care, whether they want it or not, and being forced to comply with the requirements the government proscribes? And when the United States transitions to single payer (inevitable), a person will be forced onto the Government’s plan?

Yeah, doesn’t make sense to me either.

4 Responses to “Chemerinsky on the Constitutionality of ObamaCare: Kinda Right on the Constitution, Wrong on Liberty”

  1. tarpon Says:

    I remember when the liberals screamed about their library card … So how about turning all your health records over to the government. Square that with the 4th Amendment.

  2. Mike Says:


    You are way off base in your criticism of Chemerinsky’s argument.

    First, when Chemerinsky says that “Congress has broad power to tax and spend for the general welfare,” he’s referring to Congress’s taxing power in Article I, section 8, clause 1, not to the Commerce Clause later in section 8. The taxing power clause and the Commerce Clause are completely different, though both are enumerated powers of Congress.

    Your second point of criticism, that it’s crazy to believe that the Constitution could protect a variety of non-enumerated individual rights reflecting reproductive decisions, assisted suicide, and intimate relationships while simultaneously disclaiming any power to prohibit Congress from requiring individuals to purchase health insurance under its taxing power, is comparing apples and oranges. The legal analysis of the constitutionality of Congress’s use of its taxing power is much different than the legal analysis of the constitutionality of statutes in due process or equal protection claims and to conflate the two is misleading at best.

  3. Mike Says:

    I see that Josh has yet to correct the glaring errors in his original post. Tsk, tsk.

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