Publius-Huldah's Blog

Understanding the Constitution

Refuting The Bad “Health Insurance – Auto Insurance” Analogy: A Lesson In Federalism.

Defending Our Constitution From Its Domestic Enemies.

By Publius Huldah

It has been said, even by some law professors, that Congress can force Americans to buy health insurance because …well, everybody knows that the “government” can force us to buy auto insurance.

Read on, and I will show you how such statements constitute a serious assault on “federalism” and our constitutional Republic. But first, let us hear from some of these professors.

Michael Seidman, professor of constitutional law at Georgetown University Law Center,  appeared on November 14, 2009 on Fox and Friends Saturday. He said, in support of his affirmative answer to the question, “Can Congress force Americans to buy health insurance?”,

…the government, ah you know, the government requires us to buy car insurance, it requires us to to engage in to buy the social security to buy uh social security insurance essentially… [transcribed to the best of my ability]

Nan Hunter, law professor at Georgetown’s O’Neill Institute for Global and National Health Law, gave the Introduction at a debate on October 26, 2009 between Professor Seidman and constitutional attorney David Rivkin.  The topic was “Are health care purchase mandates constitutional?”.  After describing Seidman as “one of the ah leading constitutional law scholars in the nation”, Hunter said,

…it is clear that government can mandate the purchase of private insurance before one engages in certain activities, for example, driving.  It can mandate the purchase of automobile insurance as a quid pro quo for ah legally being able to drive.  However, individuals can elect not to drive and therefore obviously not have to purchase auto insurance…

Timothy Stoltzfuz Jost, law professor at Washington and Lee University, participated in Politico’s September 18, 2009 forum on “Healthcare: Is ‘mandatory insurance’ unconstitutional?”.  Jost wrote that while the “claim” that “health reform” is unconstitutional is a “talking point” “pushed” by “Republicans”, “former Bush officials” such as David Rivkin, Fox News Commentator Andrew Napolitano, town hall attendees, and tea party demonstrators, “[i]t is not…an argument taken seriously by constitutional scholars.”  Jost went on to say,

The only plausible question is whether Congress has the authority under the Interstate Commerce Clause to require individuals to purchase health insurance. The primary difficulty here is that it is hard to think of a precedent where Congress (or for that matter the states, other than Massachusetts with its recent health care reforms) have required residents to purchase a particular product or service. Auto liability insurance mandates come to mind, but these are only imposed on persons who use the public roads.

Thomas J. Whalen, social science professor at Boston University, wrote on the Politico forum:

…the commerce clause seems sufficiently expansive enough [sic] to include mandatory health insurance for all Americans. After all, for some time now we’ve all been required to have auto insurance to operate our motor vehicles. And last time I checked, the Republic is still standing.

Apparently, Whalen is not a lawyer, though his biography informs us that he is an “expert”.   And Jost said i t was “…correct to invite…political experts to respond, because this is not a serious legal issue..”.

So!  While social science professors who agree with Jost are qualified to opine on this constitutional issue; “Republicans”, “former Bush officials” such as constitutional attorney David Rivkin, Judge Andrew Napolitano, town hall attendees and tea party demonstrators are most emphatically not. Their position, you see, is not “serious”.

By their invocation of the auto insurance analogy, such “expert” and “scholarly” professors as Seidman, Hunter, Jost and Whalen show that they have no understanding of “federalism”; or they think you don’t, and they are trying to take advantage of your supposed ignorance. So, is their metaphorical place under the dunce’s cap, or is it Antenora in the Ninth Circle?

What is “federalism”?  “Federal” refers to the form of our government:  An alliance of Sovereign States associated together in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas.

James Madison, Father of the U.S. Constitution, illustrated “federalism” in Federalist No. 45 (9th para):

The powers delegated by the proposed Constitution to thefederal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….[italics added]

Madison explained “federalism” again in Federalist No.39 (3rd para from end):

…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects…[italics added]

And in Federalist No. 14 (8th para), Madison said:

… the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...[italics added]

This, Folks, is “federalism”:  The delegation by The People and their States of a few enumerated powers to the “federal” government; and THE RETENTION OF THE GENERAL POWERS – those which “concern the lives, liberties and properties of the people” – BY THE SOVEREIGN PEOPLE AND THEIR STATES.

Article I, Sec. 8, U.S. Constitution, shows that the enumerated powers delegated to the “federal” government are confined to war, a few aspects of commerce (strictly defined), immigration, delivery of our mail, and the establishment of a uniform commercial system (bankruptcy, a monetary system, punishment of counterfeiting, a standard of weights and measures, and issuance of patents and copyrights). That’s basically it!

As Madison said, it is the States which retain an “inviolable sovereignity” over “the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people”.  It is THE STATES which have required drivers to purchase auto insurance! The federal government has no authority under The Constitution to require us to buy any kind of insurance.

By saying that Congress can force you to buy health insurance because “the government” can require you to buy auto insurance, these “scholarly” and “expert” professors are  obliterating “federalism”.  Do they not understand what they are doing?  Or, are they trying to deceive you?

The concept of “federalism” is so easy to grasp that surely these professors can understand it.  After all, some non-lawyers among this writer’s contacts  – even those who attend tea parties and town hall meetings – seem to understand it quite well. PH

December 10, 2009


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December 10, 2009 - Posted by | Federalism, Health Care, Health Insurance - Auto Insurance analogy, Michael Seidman, obamacare |

23 Comments »

  1. […] OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  […]

    Pingback by What Should States Do When the Federal Government Usurps Power? Advice From James Madison, Father Of The US Constitution - Sons of Liberty Media | August 18, 2014 | Reply

  2. [...] meaning of the “RULE OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  “constitutional” rights. [...]

    Pingback by What Should States Do When the Federal Government Usurps Power? Advice From James Madison, Father Of The US Constitution « Hill Country Preppers Network | May 3, 2013 | Reply

  3. [...] meaning of the “RULE OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  “constitutional” rights. [...]

    Pingback by What Should States Do When the Federal Government Usurps Power? Advice From James Madison, Father Of The US Constitution | The Prepper Report | May 2, 2013 | Reply

  4. [...] meaning of the “RULE OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  “constitutional” rights. [...]

    Pingback by What Should States Do When the Federal Government Usurps Power? Advice From James Madison, Father Of The US Constitution | May 2, 2013 | Reply

  5. [...] OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  [...]

    Pingback by What Should States Do When the Federal Government Usurps Power? | May 1, 2013 | Reply

  6. [...] meaning of the “RULE OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  “constitutional” rights. [...]

    Pingback by What Should States Do When the Federal Government Usurps Power? Advice From James Madison, Father Of The US Constitution | | May 1, 2013 | Reply

  7. [...] these activist judges are destroying federalism by bringing about a massive transfer of power from The People and the States to their own [...]

    Pingback by Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay Marriage | January 13, 2011 | Reply

  8. [...] meaning of the “RULE OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  “constitutional” rights. [...]

    Pingback by 912 Roll-Call’s General Blog » Blog Archive » What Should States Do When the Federal Government Usurps Power? | July 9, 2010 | Reply

  9. Excellent post. Will email this post giving you your props and providing link of course in the hopes that more folks will start to get it.

    The Federal government has been overstepping for far too long. Must find a way to open the eyes of those who continue to sleep.

    Btw, lovely family.

    Comment by bydesign001 | March 24, 2010 | Reply

    • Thank you! Getting the word out is everything. We need to make “enumerated powers”, usurpation”, “constitutional republic”, “federalism” household words. And we big kitties have to stick together!

      Comment by Publius/Huldah | March 24, 2010 | Reply

  10. The states view driving an auto as a privilege not a right. Therefore they mandate insurance for the protection of all drivers.

    Comment by doug dragert | February 10, 2010 | Reply

    • Yes, and my point is that the STATES do it, not the federal government. Congress has no authority to force us to buy any kind of insurance.

      Comment by Publius/Huldah | February 10, 2010 | Reply

  11. Good post. I bookmarked this blog and will be checking in more.

    Comment by King of Ireland | February 7, 2010 | Reply

    • Dear King of Ireland,

      I visited your blog and see that you too are interested in the subject which is nearest to my own heart: God’s model of polity and the false doctrines taught by the Christian churches which blind them to what the Bible really says. At the risk of sounding presumptuous, I ask you to read my post (including the link therein) in the Discussion Forum of the Constitution Study Group on Tea Party Nation, entitled, “THE U.S. CONSTITUTION IS BASED ON GOD’S MODEL OF POLITY”…

      and then, let’s talk. I don’t know if one can read it without joining TPN. Anyway, I teach the Constitution Study Group there. The pastors have betrayed their sacred document (the Bible) as much as the lawyers have betrayed ours (the Constitution).

      I tried to post this on your blog, but “blog spots” keep saying my URL (or whatever) is “illegal”. PH

      Comment by Publius/Huldah | February 7, 2010 | Reply

  12. Nice to hear from you – stay in touch!

    Comment by Publius/Huldah | January 7, 2010 | Reply

  13. Here’s a much simpler and more understandable refutation of the whole “auto insurance = health insurance” red herring:

    Law does NOT require us to buy auto insurance, or even a car. STATES only require us to own auto insurance if we want to drive on STATE-OWNED roads. People who don’t drive, don’t have to buy auto insurance. Should I have to buy health insurance in order to BREATHE? That analogy suggests that our lives and health belong to the US government.

    Comment by Keith Diederich | December 23, 2009 | Reply

    • Yes it does. But by claiming the right to tax your wages, they already claimed you as their slave, as far as your labor was concerned.

      Now, they seek to expand their control over you to the extent of deciding whether you live or die. If they do not allow you to get medical care, you die.

      And all this was done in the name of “compassion”. But the Stupid, Envious, and Resentful just lapped it up.

      Comment by Publius/Huldah | December 23, 2009 | Reply

  14. Regulating commerce is not the same thing as requiring people to engage in it. It’s that simple.

    Comment by Peter Asher | December 23, 2009 | Reply

  15. Yes PH that does make sense, I wasn’t thinking about it that way. I will post your entire article with a link of course. This info needs to be spread around, the general public is so uneducated on the subject of the Constitution and the reason the founders did what they did. As I said this is a great article. I also read the one on Treaties and you are correct on it as well. Contrary to what most think they can not override the Constitution. Your info needs to be spread all over the US. I do believe the Tea Parties are waking up some people as to the Constitution and their rights that they didn’t know they had. Looks like we’re going to get plenty of chances to us the 10th with this current administration. Keep up the good work Ms PH :)

    Comment by Mike | December 21, 2009 | Reply

    • I can get it off your WordPress blog here just fine. Thank your for the assist though. I like this article and the one on Treaties. So far that’s the two I’ve read entirely. People need to be educated and that’s what I try to do from time to time on my blog as well as posting current events, usually political events that are going on at the time. But sticking to the Constitution is my pet pev (don’t know if that’s the correct spelling). I am also a member of a Tennessee Town Hall we could put your articles in as well and a couple in Arkansas that would enjoy seeing the info. I am also in another large group that is nation wide we could post your articles in as well. The way I see it, the more exposure you could have over the internet the better it would be.

      Comment by Mike | December 21, 2009 | Reply

  16. Thank you again for another great well written article. Your articles are invaluable to me.
    It is just a shame that some law professors do not give the full truth about Constitutional law, whether it is intentional or to deceive. It pollutes the minds of students if they don`t know the real truth which they can then form their own opinion. But truth prevails.
    Looking forward to more articles.

    Henry R.

    Comment by Henry R | December 17, 2009 | Reply

  17. I agree with all of this, Publius, but there is one aspect of the “health insurance – auto insurance” analogy that is fitting: pre-existing conditions. No auto insurance provider could survive were it forced to cover damage pre-dating the inception of a policy. The fate for medical insurance providers would be the same (but perhaps this is the point).

    Insurance does not protect your car or your health, nor is it a maintenance plan for either. Insurance is a financial instrument designed to hedge against the risk of financial loss. Insurance protects your finances against loss resulting from costs incurred by misfortunes befalling your assets (including your personal health).

    If the people and their “representatives” are seemingly unable to grasp such a simple concept as the nature and purpose of insurance, why should we be surprised that they cannot understand the nature and purpose of the U.S. Constitution?

    “Do they not understand what they are doing?”

    A better question might be, do we not understand what *they* are doing? And what are *we* going to do to stop them? It’s fairly obvious upon which side of Liberty and Tyranny these measures fall.

    Comment by Charlie | December 11, 2009 | Reply

  18. Thank you once again for setting the record straight on another aspect of our government, “Of, By, and FOR the People”, not Of, By and FOR the Federal Government, as they’d have us believe it to be.

    Comment by William - Freedoms Voice | December 10, 2009 | Reply


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