O’Reilly Promotes Fringe Constitutional Attack on Health Care: An Individual Mandate Is Unconstitutional

While progressives fight to fix a broken health system that leaves millions of Americans without access to lifesaving care, conservatives are increasingly offering fringe constitutional theories to lock the status quo in place forever. Last night, Bill O’Reilly joined their number, claiming that an individual mandate requiring almost all Americans to be insured is unconstitutional because “the federal government cannot force you to do or buy anything.”  Watch it:

Fox anchor Megyn Kelly tells O’Reilly in the same segment that she is not sure whether an individual mandate is constitutional because it would “require days and weeks of research” for her to determine whether it is.

Kelly could spend days and weeks researching this question, but the Wonk Room already addressed it on Monday.  As the Supreme Court held in Gonzales v. Raich, the Constitution empowers Congress to enact broad regulatory schemes that “substantially affect interstate commerce.”  This power includes authority to enact broad reforms that concern “economic activity,” and an individual mandate unquestionably falls within the scope of this power:

The [individual mandate] would require most uninsured Americans to buy a product — health insurance coverage — which pools thousands of people’s premiums together and pays those people’s medical costs as they become ill. … [T]he individual mandate would lower premiums nationwide by requiring more healthy individuals to buy into the system; while reducing the risk of catastrophic financial loss should a person who was previously uninsured experience catastrophic illness. It is difficult to imagine a law which has a more obvious economic impact than a requirement that all Americans be insured.

So O’Reilly’s constitutional attack on health reform is entirely without merit. Sadly, however, it is also one of the least virulent theories being advanced by right-wing constitutional theorists. A number of elected conservatives, including Rep. Michele Bachmann (R-MN), Gov. Rick Perry (R-TX) and Sen. Jim DeMint (R-SC) are proud members of the “tenther” movement — a movement that believes that landmark progressive reforms such as Medicare, Medicaid, Social Security, federal education funding, the VA health system, the G.I. Bill, the federal minimum wage, and the federal ban on whites-only lunch counters are all unconstitutional.  Since they could never pass such a radical agenda through Congress, conservatives now want to rewrite the Constitution to suit their ends.


KELLY: There are some questions. And they have been totally ignored, interestingly enough.

O’REILLY: They have been?

KELLY: By most of the media.

O’REILLY: Right.

KELLY: And by most constitutional scholars. Everyone just assumes that President Obama and the Democrats can impose this tax on us, this — basically the legislation coming out of both houses of Congress proposed would say you have to get health insurance. And either have to get it through your employer, if you don’t have it through your employer, you have to pay for it. You have to buy it if you don’t.

O’REILLY: Yeah, but if you’re governmental funded.

KELLY: Right.

O’REILLY: But they do this in Massachusetts already.

KELLY: They say if you don’t do it, then you’re be fined by the federal government there.

O’REILLY: Right.

KELLY: And there’s a real question about whether the Congress has the power to do that to you. They’d be doing it probably under their commerce clause power, which is the broadest power that they have. But the courts in the past decade or so have really cracked down a little bit more on commerce clause power and just don’t give Congress an empty check.

O’REILLY: So are you saying it is not constitutional to force people to buy health care?

KELLY: I’m saying that would require days and weeks of research.

O’REILLY: Days and weeks.

KELLY: So we don’t have that.

O’REILLY: And you don’t have that, do you, Kelly?

And not only do I not have it.


KELLY: .but the constitutional scholars don’t have it yet. What do you say?

WIEHL: Constitutional scholars are all over the place.

O’REILLY: Constitutional?

WIEHL: I say that it is constitutional. I don’t like a lot of parts of this health plan but the.

O’REILLY: I don’t care what you like or not like.

WIEHL: But Commerce.

O’REILLY: .why is it constitutional? All right, nobody, hold it, Wiehl.

KELLY: Any time somebody drives a truck.

O’REILLY: Wiehl, stop talking. Nobody understands what the commerce clause is.

WIEHL: Right.

O’REILLY: Please explain it briefly.

WIEHL: Okay, Article I in the constitution.


WIEHL: .the Congress has the power to regulate interstate commerce. That is anything that goes from one state to the other.

O’REILLY: Okay, so what?

WIEHL: So a trucker. They can – and takes your lettuce from one state to the other. They can.

O’REILLY: What does that have to do with health care?

WIEHL: Health care itself may be local. Your doctor may be in your state but the medical supplies that come to you, the medical equipment, all of the things.

O’REILLY: So what? Why can they make you buy anything?

WIEHL: Because they can regulate interstate commerce. Those things go through interstate.


WIEHL: They can force you.

O’REILLY: Now I want the audience to know this is total B.S. This is why people hate lawyers.

KELLY: This is the constitution.

O’REILLY: This is nuts. All right, here’s the question, Kelly. And I’m going to give one more shot, Wiehl. The government is saying you have to buy health insurance. You have to do it.

KELLY: Right.

O’REILLY: I say that’s unconstitutional. The federal government doesn’t have the power to force an American to buy anything.

KELLY: That is the distinction between this case and most of the cases that come under the commerce clause power. It’s more like a taxing power. I mean, the Congress has the power to tax us, too. Let’s not fool ourselves.

O’REILLY: Okay, but this is it has nothing to do with taxes.

KELLY: Well, no, but.

O’REILLY: It has defining – they’re finding, I understand it. But I think on the upfront, Wiehl, the government cannot buy that dress, Wiehl. You have to buy that dress because it’s good for you. They can’t tell to you buy anything.

WIEHL: Or they can tax you. They can’t tell you to buy it, or they can tax you. Megyn’s absolutely right one way or the other.

O’REILLY: But they’re telling you to buy it. And if you don’t, you’re punished.

WIEHL: Because and they’re also saying you are going to get a benefit a government benefit.

O’REILLY: I think the Supreme Court would say.

KELLY: You have a decent point because.


KELLY: .normally they can’t tax you unless they had the power to regulate the behavior they want to tax you for in the first place. So we’re back to the commerce clause and do they have the power.

O’REILLY: I don’t want to hear it. Give me a headache. I’m going to go on the record a saying now this is unconstitutional. The federal government cannot force you to do or buy anything.