UPDATE: The video is now working.
A popular right-wing objection to federal health care legislation is that it’s unconstitutional. These “tenthers” argue that since the U.S. Constitution never explicitly gives the federal government the right to regulate health care, the 10th amendment leaves that power to the states. Texas tenthers have held pro-secession rallies, and officials in various states have raised the possibility of legislation to exempt their residents from federal health care.
Yesterday in the Senate Finance Committee markup, Sen. John Ensign (R-NV) took these concerns to the next level by saying that people who “hold the Constitution pretty high in their lives” should be able to opt-out of being required to purchase health care insurance, making it similar to a religious objection:
ENSIGN: We’ve allowed exceptions for religious and various other reasons. But some people hold the Constitution pretty high in their lives, and if they believe that this thing is unconstitutional, and they then say, “I choose not to have health insurance, I’m not going to buy it,” we could be subjecting those very people who conscientiously — because they believe in the U.S. Constitution — we could be subjecting them to fines or the interpretation of a judge, potentially, all the way up to imprisonment. That seems to me to be a problem.
Ensign also predicted that some people would actually drop their health insurance “just out of conscience” in order to make a point and show solidarity with the tenthers. Watch it:
Basically, Ensign believes that anyone who claims any law is unconstitutional should be allowed to ignore that law. While Congress has allowed “exceptions for religious and various other reasons,” in the 1990 case Employment Division, Department of Human Resources of Oregon v. Smith, Justice Antonin Scalia actually warned that allowing a person “to become a law unto himself” defies “common sense”:
The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” contradicts both constitutional tradition and common sense.
ENSIGN: Let me ask, if someone — The reason I’m going down this line of questioning is we have heard from a lot of people — and I bet your office has, most of our offices have as well. Sen. Hatch mentioned this, that a lot of people do not believe that this is constitutional. That this is not in the enumerated powers of the U.S. government to mandate the purchase of health insurance or penalize somebody.
We’ve allowed exceptions for religious and various other reasons. But some people hold the Constitution pretty high in their lives, and if they believe that this thing is unconstitutional, and they then say, “I choose not to have health insurance, I’m not going to buy it,” we could be subjecting those very people who conscientiously — because they believe in the U.S. Constitution — we could be subjecting them to fines or the interpretation of a judge, potentially, all the way up to imprisonment. That seems to me to be a problem.
I understand the idea of this shared responsibility and the insurance companies want — they want everybody to have this mandate. That’s how they can get rid of pre-existing conditions. I understand all of that. But there are a lot of Americans who hold that Constitution of the United States very dearly, and if you look at the enumerated powers, I have trouble understanding how we’re mandating the purchase of health insurance, other than the broad interpretation of the general welfare clause, which, by the way, Madison — who wrote the Constitution — certainly, according to the Federalist Papers No. 10, certainly did not envision that. As a matter of fact, he was a huge critic of the general expansion of the general welfare clause.
So I would think that we should take this thing very very seriously and consider what we are doing to the American people who are going to be protesting. Some people may even do this just out of conscience, drop their health insurance, and then want to take this thing on. Because there is an outrage amongst the American people over this.