Obama Health Care Reform and the Constitution

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Suite 101

David J. Shestokas

Washington assumes that Congress has the authority to directly regulate the doctor patient relationship. Is there validity to that assumption?

Often Congress passes legislation without including statements in the law of the constitutional authority it has acted under. When this happens the courts must sort out the authority under which a given law was passed. The oath of office taken by each Representative and Senator requires that each support and defend the Constitution bearing true faith to the document. Consideration of this oath would include an obligation to consider the constitutionality of laws being passed. This obligation applies to President Obama’s pending health care reform.

Congressional Oath of Office to Support and Defend the Constitution

Article VI of the Constitution requires all federal officials to take an oath of office. Since 1884, the Congressional Oath of Office taken by all Senators and Congressman has been:

“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

This oath by its own terms requires members of Congress to act in accordance with the Constitution in the conduct of their offices. When there is a statement of constitutional purpose in legislation the courts are given significant direction in interpreting the law and its validity.

Social Security Considered by Court After Program Was Entrenched

By the time litigation regarding Social Security reached the Supreme Court there had been collected $150,000,000 in payroll taxes, a huge bureaucracy was in place and some claimants were all ready getting benefits. The Court was faced with a fait accompli and came up with a convoluted opinion in Helvering v. Davis, 301 U.S. 619 (1937) to uphold a law which would have been a nightmare to dismantle.

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This historical situation applies to the current health care debate as Congress attempts to impose its will on one-seventh of the American economy. There are significant constitutional considerations involved in the debates regarding health care. Current proposals do not include statements of constitutional authority.

Doctor Patient Relationship Subject to Constitutional Right to Privacy

The Supreme Court has been very protective of the doctor/patient relationship and finding that the federal government has little if any business being involved in that process.

In the 1925 case of Linder v. United States, a doctor proscribed morphine for a patient allegedly in violation of federal law. The doctor was prosecuted and found guilty in overturning his conviction the Court said: “Obviously, direct control of medical practice in the states is beyond the power of the federal government.

More recently the right to privacy in medical decisions found in the 9th and 10th Amendments has become important to the Court and was the principal factor in Roe v. Wade. In 2003, in rejecting an appeal of Conant v. Walters, the Court refused to change a lower court decision that allowed doctors to be involved with their patients regarding medical marijuana. In 2005 the Court upheld Oregon’s assisted suicide law in Gonzales v. Oregon.

Individual Mandates

A principle element of President Obama’s health care reform proposals includes something called individual mandates. These mandates would essentially require someone to obtain health insurance or face financial penalties. Government would be involved in some of the most private decisions individual Americans make.

Consider the Constitution Before Passing Laws

The congressional oath of office requires support of and true faith to the Constitution. Fulfillment of that oath includes passing constitutional legislation. Inclusion of a statement of constitutional purpose and authority gives the courts significant direction in future rulings
Read more at Suite101: Obama Health Care Reform and the Constitution: Can Congress Regulate Health Care Choices? | Suite101.com http://peacesecurity.suite101.com/article.cfm/health_care_reform_and_the_constitution#ixzz0aOWjK1U1

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