Wednesday, December 2, 2009


By Larry Becraft
November 29, 2009

The current debate about “national health care” is exclusively centered on the merits of various provisions in the multiple versions offered by different factions in Congress, all of whom presume that America is destined to have such a program, in one form or another. Completely removed from the debate over this matter is any mention of the absence of constitutional authority for the feds to establish such a scheme in the jurisdiction of the several States. It is reputed that when an astute critic of this legislative tragedy noted this constitutional defect to a Congressman, he received a smug reply: “show me where we cannot enact this program.” Apparently, there are lots of constitutionally challenged federal legislators besides Pelosi.

There is one very profound constitutional objection to this federal gamble to subject Americans and their health care to the control of politicians and bureaucrats. Congress lacks the constitutional authority to regulate and control the practice of medicine in the jurisdictions of the States.

See Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446 (1925)("Obviously, direct control of medical practice in the states is beyond the power of the federal government");

Lambert v. Yellowly, 272 U.S. 581, 598, 47 S.Ct. 210 (1926)(“It is important also to bear in mind that ‘direct control of medical practice in the States is beyond the power of the Federal Government.’ Linder v. United States, 268 U.S. 5, 18. Congress, therefore, cannot directly restrict the professional judgment of the physician or interfere with its free exercise in the treatment of disease. Whatever power exists in that respect belongs to the states exclusively.”);

and Oregon v. Ashcroft, 368 F.3d 1118, 1124 (9th Cir. 2004)(“The principle that state governments bear the primary responsibility for evaluating physician assisted suicide follows from our concept of federalism, which requires that state lawmakers, not the federal government, are ‘the primary regulators of professional [medical] conduct.’ Conant v. Walters, 309 F.3d 629, 639 (9th Cir. 2002);

see also Glucksberg, 521 U.S. at 737, 117 S.Ct. 2258 (O'Connor, J., concurring). The Supreme Court has made the constitutional principle clear: ‘Obviously, direct control of medical practice in the states is beyond the power of the federal government.’ Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446, 69 L.Ed. 819 (1925);

see also Barsky v. Bd. of Regents, 347 U.S. 442, 449, 74 S.Ct. 650, 98 L.Ed. 829 (1954) (‘It is elemental that a state has broad power to establish and enforce standards of conduct within its borders relative to the health of everyone there. It is a vital part of a state's police power.’). The Attorney General ‘may not . . . regulate [the doctor-patient] relationship to advance federal policy.’ Conant, 309 F.3d at 647 (Kozinski, J., concurring).”).

And certain features of this proposed law will certainly be unconstitutional; see United States v. Constantine, 296 U.S. 287, 56 S.Ct. 223 (1935).

Please spread the word and loudly object to your Congressman.

Lowell (Larry) Becraft, Jr., is a constitutional attorney based in Huntsville, Alabama, who specializes in criminal defense cases, primarily involving the federal income tax. His legal web site is: E-Mail:

1 comment:

keep smiling said...

This is a perfect example of how progressive's get their unconstitutional issues passed. Their methods draw opponents into a debate defending their opposition to the provisions in a bill. While the real problem is overlooked,the basic premise of the bill is illegal. Well, no more! We are wasting valuable time. Stop debating a mute point. Check your premise. Who is John Galt....