Orrin Hatch

The following originally appeared as an op-ed in the St. George Spectrum. -Team Hatch

"If men were angels," James Madison once wrote, "no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." America's founders understood the nature of both human beings and the governments they create and knew that ordered liberty requires limited government. That principle is critical in the current debate over health care reform.

The Constitution both empowers and limits government in general, and the federal government in particular. Congress must have more than just a good idea or a noble intention to legislate. It must also have authority grounded in at least one of its delegated enumerated powers.

Each of the current health care reform bills would require everyone to buy health insurance. Even if this were the best idea in the entire history of ideas, Congress must first have authority to enact it into law. The Constitution must come before politics. The only enumerated power that could conceivably justify this individual mandate to purchase health insurance is Congress' power to regulate interstate commerce.

The Supreme Court has steadily expanded the meaning of "interstate commerce" as the category of what Congress may regulate. By the early 1940s, after President Franklin Roosevelt began appointing activist justices, the court allowed Congress to regulate any activity -- even non-commercial as well as intra-state activity -- that substantially affects interstate commerce. That remains the basic definition today.

But there has been one constant since the Constitution was first drafted. Every Supreme Court commerce clause case has involved Congress attempting to regulate some activity in which people had chosen to engage. In other words, Congress sought to regulate how, but not whether, people did things that either are commerce or substantially affect it.

The mandate that individuals buy health insurance is exactly the opposite of what the Supreme Court has allowed in the past. This mandate would, for the first time, use the commerce clause to cross the line between regulating what people do and start requiring what people must do.

There is some real déjà vu here. The Clinton administration's attempt at heath care reform included an almost identical mandate that individuals purchase health insurance. In August 1994, the Congressional Budget Office concluded that this "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."

Nothing has changed. Just a few months ago, the Congressional Research Service said in a report that "it is a novel issue whether Congress may use (the commerce clause) to require an individual to purchase a good or a service." If it may, then there was no need for the "Cash for Clunkers" program because Congress could simply have ordered people to buy fuel-efficient cars. There was no need for the TARP or other bailout programs because Congress could have ordered people to buy certain stocks or deposit their money in certain banks.

Incentives are one thing, mandates are another. Eliminating the element of individual choice would be boldly going where Congress has never gone before. And by eliminating virtually any limit to federal government power, it would do irreparable damage to individual liberty.

The front steps of the National Archives bear the words "eternal vigilance is the price of liberty." Those words are appropriate for the home of the Constitution. Vigilance means that the Constitution's principles must guide what the federal government does, even with something as important as health care reform. The Constitution does not, it cannot, mean whatever government wants it to mean or there would no limits left on government power. Congress may not be able to do everything it wants to do, but that is, indeed, the price of liberty.