(CNSNews.com) - Republican Sen. Orrin Hatch of Utah, who has served in the Senate for 33 years and is a longtime member of the Judiciary Committee, told CNSNews.com that he does not believe the Democrats' health-care reform plan is constitutionally justifiable, noting that if the federal government can force Americans to buy health insurance "then there is literally nothing the federal government can't force us to do."Both the House and Senate versions of the health-care reform plan would force all individuals who are citizens or legal residents of the United States to buy health insurance. President Obama has endorsed this provision.
Hatch said if the federal government starts ordering Americans to purchase specific products without being able to plausibly justify that mandate through the Commerce Clause of the Constitution which empowers Congress to regulate interstate commerce, it will mean "we've lost our freedoms, and that means the federal government can do anything it wants to do to us."
The Commerce Clause, found in Section 8 of Article 1 of the Constitution, says: "The Congress shall have power to ... regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Hatch said this constitutional language authorizes Congress to regulate some types of commercial "activity," which is different from authorizing Congress to force an individual American to engage in a commercial activity he or she is not presently engaged in and--as a free person--does not want to engage in. He said that "not one" of his Democratic colleagues has given a coherent constitutional argument to explain where Congress would derive the authority to do the latter.
According to the Congressional Budget Office, the federal government has never before mandated that Americans buy any good or service.
In 1994, when Congress was considering a universal health care plan formulated by then-First Lady Hillary Clinton, the Congressional Budget Office studied that plan's provision that would have forced individuals to buy health insurance and determined it was an unprecedented act.
"A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States," the CBO concluded. "An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government."
"I think there's a real constitutional issue there," Hatch said on the CNSNews.com program "Online with Terry Jeffrey."
He rejected the argument some have made that the federal government forcing everyone to buy health insurance is no different than state governments mandating that people who want to drive must buy auto insurance.
"You know, the illustration they give all the time is: Well, states require people to buy auto insurance. Yeah, they do, if they want to drive," said Hatch. "But here would be the first time where our [federal] government would demand that people buy something that they may or may not want. And, you know, if that's the case, then we didn't need a 'Cash for Clunkers,' all we had to do is have the federal government say you all got to buy new cars, no matter how tough it is on you. You know, they could require you to buy anything. And that isn't America. That's not freedom. That's not constitutionally sound. Now, there may be some gimmicky way that they can do this, but I can't think of a gimmicky way that would be constitutionally justified."