Mar 23 2012

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Obamacare Anniversary & an Uncertain Future

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Driving a Stake in the Middle of the Constitution

Happy Birthday, Obamacare.

Conceived with such expectation, and delivered with such pain and political cost, who among the Left would have believed that two years on, the enormous entitlement to more free stuff would be so uniformly unpopular among the American people, with wide ranging controvery over the law’s regulatory  and cost foundations.

But more important than the laughable cost estimates for Obamacare, which CBO just exposed, or the forshadowing of “Big Brother” government, utlizing the power of regulatory fiat to trump religious and conscience objections to provisions of the law, is the central – indeed existential question – regarding the   constitutionality of the Obamacare.

On Monday, the Supreme Court will begin three days of oral argument on Obamacare. In agreeing to hear the case among the many state-level efforts aimed at overturning the law, SCOTUS chose not to limit its review to specific provisions of Obamacare,  but rather to provide itself the latitude to make a fundemental constitutional assessment.

What a contrast this is to a contemptuous Nancy Pelosi, who, as Speaker, when asked whether Obamacare was constitutional, sniffed, wondering whether that could be a serious question.

Exactly two years ago today, I wrote about Obamacare and the Constitution in an article published on Examiner.com.

At the time, most constitutional scholars shared the view of Speaker Pelosi, finding little reason to believe the law could be successfully challenged, let alone make it to the Supremes. Opponents making a constitutional argument were categorized as cranks and sore losers.

With that in mind, I reprint my column from two years ago to see if the arguments withstand the test of time.

You be the judge – and keep this in mind when you hear the reporting on the oral arguments next week…..

Is the Federal mandate to buy heath insurance Constitutional?

It is not without a sense of amusement that we see that the very people who  have been the most vocal critics of America’s “mindless” consumerism are  now among the most ardent supporters of the soon-to-be-law health care bill,  which, for the first time in history, gives the federal government power to  compel the purchase of a commercial commodity.

To those who do not ascribe to a legislative environment where “we make the  rules up as we go along” – as Rules Committee member Alcee Hastings said Friday  – the new, personal mandate on health insurance raises a quaint  question about whether the Constitution actually permits the federal  government  to force Americans to buy health care.

Clearly the Democratic leadership in Congress thinks so.

When House Speaker Nancy Pelosi was asked last autumn about the  constitutionality of the federal mandate, she looked positively incredulous  saying, “Are you serious?”

At the White House yesterday, Press spokesman Robert Gibbs said the  Administration was confident that the health care law would prevail in  any legal challenge, specifically in light of actions initiated by up  to a dozen States’ Attorneys’ General who are challenging the constitutionality  of this provision of health care reform.

But is it that cut and dried?

Article VI, Clause 2 of the Constitution seems compelling for Mrs. Pelosi  and the Democrats.

This Constitution, and the Laws of the United States which shall be  made in Pursuance thereof; and all Treaties made, or which shall be made, under  the Authority of the United States, shall be the supreme Law of the Land; and  the Judges in every State shall be bound thereby, any Thing in the Constitution  or Laws of any State to the Contrary notwithstanding.”

So essentially, if Congress says so, then it is so.

Pretty convincing.

And if that wasn’t enough, there is the specific constitutional authority  regarding interstate commerce.

Congress has the authority to” …regulate Commerce with foreign  Nations, and among the several States, and with the Indian Tribes.

Private sector health insurance is a commercial commodity – at least for  now.

But wait.

The Constitution is a document of enumerated rights, specifically  designed to – hold on to your hats my friends on the left – limit the  power of the federal government.

Suitably suspicious of centralized government power after a lifetime of  monarchical tyranny, the Founders whimsically believed that as essential as  it was to have a strong federal government, it was equally essential to  prescribe and limit its powers.

If that wasn’t clear in the architecture of the Constitution itself, it was  made clear in the Bill of Rights; specifically the 10th Amendment.

“X – The powers not delegated to the United States by the Constitution,  nor prohibited by it to the States, are reserved to the States respectively, or  to the people.”

So, federal powers are finite and specified, with the remainder reserved for  the States and people.

Now let’s compare.

If you look at the 10th Amendment in light of the “Supremacy” clause in  Article VI, it would appear that the 10th Amendment trumps legislation that  exceeds the enumerated powers of the Federal government. Like, say, mandating  citizens buy health care.

Obamacare supporters would immediately reference the Interstate Commerce  clause.

But upon only cursory review, this authority has generally been used to  harmonize and unburden inter-state commerce, and prevent states from  complicating the free flow of commerce.  And while the power of the clause  has been expanded in 230 years – successfully invoked by the US government  in support of the Clean Air Act governing inter-state pollution – it has never  been used as a justification to mandate the purchase of a commodity.

And if one seeks to frame the federal mandate to purchase health care as a  revenue mechanism, the 16th Amendment prescribes the manner in which the federal  government can do so.

“The Congress shall have power to lay and collect taxes on incomes, from  whatever source derived, without apportionment among the several States, and  without regard to any census or enumeration.”

But clearly the mandate to buy insurance is not an income tax. Or  for that matter is it an excise tax, tariff or sales tax, previously used to  fund government.

So where does the authority to mandate that Americans buy health insurance  derive from?

The fact is that there is no Constitutional basis for the  mandate.  It has never been done  in American history. The action  by Congress places the nation in uncharted waters.

Indeed, as Cap and Trade legislation seeks to monetize the air we  breathe, Obamacare seeks to monetize American citizenship.

This is unprecedented.

Remember, this is not an argument on the merits of Americans being required  to carry health insurance. That debate can be left to the partisans and policy  scribes.  It is simply a matter of the fundamental legality of the  provision.

It is sad that in today’s political environment that it is necessary to  point out, that because something is seen as “good,” does not make it legal.

But in their genius, the Founders provided a mechanism to alter the law of  the land to allow future generations of Americans to meet the challenges and  circumstances of their time. Gamely, a method that requires the direct  participation of the citizenry to build and demonstrate consensus – a  constitutional amendment.

Can you already see the crestfallen look on the faces of Speaker Pelosi and  Leader Reid?

It seems that where ever they turn, Democrats keep on running  into the pesky democratic process and a truculent citizenry with ideas  of their own.

Striking down this federal mandate will be controversial, necessarily  igniting a robust debate on the seperation of powers.  But to leave it in  place would be to make a farce out of the Constitution.

Time to stand up and be counted.


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