Orrin Hatch

The following originally appeared as an op-ed with Mark Shurtleff in the Salt Lake Tribune. -Team Hatch

The legislation being crafted in Washington to take over the health care system is not only bad policy for Utah and America but a threat to liberty itself. It undermines the rights of both individual Americans and states. We will work together, fighting on both political and legal fronts, to prevent this big-government plan from unconstitutionally expanding federal power and control over all of us.

The liberals crafting this legislation in Washington intend to have it to President Obama by his 2010 State of the Union address. Ironically, their attempt to ram this legislation through Congress will instead sicken and weaken the state of the Union. While signing such legislation may resolve the policy disputes, the legal disputes are just beginning. As late as Dec. 23, the Senate voted to reject two points of order that the legislation is unconstitutional. Republicans stood up for the Constitution; Democrats preferred politics. Now it may be up to the courts to decide.

This legislation presents two categories of constitutional problems. The first includes provisions which affect individuals and businesses. The mandate that individuals obtain health insurance, for example, would be the first time in American history that Congress has required Americans to purchase a particular good or service. Nothing in the Constitution gives Congress that much power over the decisions and lives of Utahns. Congress may regulate economic activities in which people choose to engage, but it may not require that people engage in those activities.

Seventy-five percent of Americans are correct in their belief that this insurance mandate is unconstitutional because Congress's power to regulate interstate commerce does not include the power to tell Americans what they must buy.

The legislation would also impose a steep excise tax on insurance plans with premiums above a certain threshold. The Constitution requires that excise taxes be "uniform throughout the United States," which means that they must have the same force and effect wherever the subject of the tax is found. But the legislation raises the threshold, thus lowering the tax burden, in some states but not in others. Applying a tax differently is the opposite of applying it uniformly.

Of grave concern to the people of Utah is the fact that this legislation would undermine the sovereign status of the states in our system of government. Federalism is a critical means of limiting government power in order to protect liberty. This legislation would, for example, require states to establish such things as health benefit exchanges to administer and regulate this new federal healthcare system. In other words, Washington is ordering Utah lawmakers and those of every other state to pass state legislation and issue state regulations in order to carry out a federal program.

This bold move would reduce the states to little more than subdivisions of the federal government and is clearly unconstitutional. The Supreme Court can sometimes be hard to understand, but in the 1992 case of New York v. United States, it held: "The Federal Government may not compel the States to enact or administer a federal regulatory program." The court does not often use the word "categorically," but in Printz v. United States (1997), the court "categorically" reaffirmed that same principle, adding that "state legislatures are not subject to federal direction." What part of that constitutional prohibition does Washington not understand?

These are just some of the constitutional defects with this legislation that affect both individuals and states. Litigation on these and other issues may well begin soon after this legislation becomes law. The attorneys general in several states have already stated their intent to pursue litigation if what has become known as the "Nebraska Compromise," which permanently exempts Nebraska from paying Medicaid costs that other states must pay, becomes law.

Liberty requires limits on government; it always has and it always will. America's founders knew this and built limits into the system of government they established, including a written Constitution that delegates enumerated powers to the federal government. By ignoring those constitutional limits, this health care takeover legislation weakens us more than it heals us and threatens our liberty and there is no cause more just than fighting to defend it.