More on Why Health Care Reform is Constitutional: is Mr. Farah Serious or Seriously Misinformed?
by Joseph Farah, the founder and editor of World Net Daily, asserts that recently proposed health insurance legislation is unconstitutional. Most first year law students, however, should be able to persuasively show the opposite is true. This article points out the major errors in Mr. Farah’s commentary.
The debate over the constitutionality of proposed health insurance legislation continues. Patrice Lewis, a contributor to World Net Daily, recently asked “progressives” to explain why they believe Congress can legislate in this area. I responded to that request, citing the Constitution’s Commerce Clause and General Welfare Clause, as well as several Supreme Court decisions. Now, World Net Daily editor and CEO Joseph Farah claims that the Supreme Court decision in Linder v. United States, 268 U.S. 5 (1925) says otherwise.
Mr. Farah’s analysis, however, is wrong on several levels. First of all, Linder is irrelevant. That case said the federal government could not criminalize the prescription of small amounts of morphine and cocaine to an addict to relieve the addict’s cravings. It said nothing about health insurance. As Mr. Farah acknowledges, Speaker Pelosi’s proposed legislation is all about insurance; it has nothing to do with prescriptions or medical decisions. As a result, Linder has no impact on the bill at hand. Moreover, the Supreme Court expressly decided in United States v. South-Eastern Underwriters, 322 U.S. 533 (1944) that the Commerce Clause lets Congress regulate the buying and selling of insurance. True, South-Eastern Underwriters discusses fire insurance, but there is no principled distinction between fire and health insurance here.
Second, Linder has been implicitly overruled. Congress adopted the Controlled Substances Act in 1970. This Act prohibits the distribution (including prescription) of certain drugs like marijuana and heroin. It also regulates many others, including morphine and amphetamines . The Supreme Court upheld the Act as a valid exercise of Congressional power under the Commerce Clause, even when applied to the “intrastate manufacture and possession of medical marijuana for medical purposes” pursuant to a doctor’s recommendation or approval. Gonzales v. Raich, 545 U.S. 1 (2005). The moral is clear: the Commerce Clause lets Congress regulate the distribution and prescription of drugs; Linder, to the extent it says otherwise, is no longer valid.
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