O’Reilly Promotes Fringe Constitutional Attack on Health Care

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.

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