That Pesky Constitution
On December 13, 2010, U.S. District Judge Henry E. Hudson signed a Memorandum Opinion declaring unconstitutional a key provision of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 – better known as ObamaCare. In his legal cross hairs was Section 1501 of the Act, known as the Minimum Essential Coverage Provision, which requires every U.S. citizen, other than those falling within specified exceptions, to purchase a minimum level of health insurance coverage beginning in 2014. Section 1501 is administered and enforced as part of the Internal Revenue Code and failure to comply will result in a penalty included with the taxpayer’s annual federal tax return.
This new ruling on cross-motions for summary judgment came in the case of Commonwealth of Virginia v. Kathleen Sebelius, filed last March by Ken Cuccinelli, Virginia’s attorney general, against Kathleen Sebelius, the secretary of the Department of Health and Human Services, wherein the state of Virginia challenged the constitutionality of the pivotal enforcement mechanism contained in ObamaCare. An appeal to the U.S. Supreme Court will likely be the next stop for this critical ruling.
This ruling is a teachable constitutional moment and echoes one of the main criticisms of ObamaCare – that the Commerce Clause of the U.S. Constitution does not give Washington the power to require people to buy health insurance or face a stiff penalty. Opponents of the intrusive bill argued – successfully it seems – that the passage of Section 1501 exceeds the power of Congress under the Commerce Clause and the General Welfare Clause of the U.S. Constitution. Instead of policy wonks arguing about the political merits and economic stimulus of smaller federal government, perhaps the key to keeping Washington, D.C., in check has been under our noses the whole time – the U.S. Constitution.
Congressional Republicans are promising to pass “a clean repeal of ObamaCare” once they take over the House in January. That effort may be bolstered by the alarming number of people who are not surprised at the new court ruling. The three main arguments in support of ObamaCare – low cost, constitutionality, and support of the American people – have now all been thoroughly discredited. Repeal will be foremost on the minds of legislators next year, and any veto of efforts to repeal will undoubtedly remain on the minds of voters in 2012.
The core issue examined by Judge Hudson was whether or not Congress has the power to regulate – and tax – a citizen’s decision not to participate in interstate commerce, to wit, the purchase of insurance. Judge Henry correctly points out in his decision that no reported case from any federal appellate court in history has extended the Commerce Clause to include the regulation of a person’s decision not to purchase a product – notwithstanding its effect on interstate commerce.
The Commerce Clause is one of the enumerated powers listed in the U.S. Constitution (Article I, Section 8, Clause 3), which sets forth the limits of Congressional authority. The clause states that Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The 10th Amendment provides that any powers not specifically vested in the federal government nor prohibited of the states are reserved to the states and to the people. Therefore, the only powers given to Congress are those specifically listed.
The status of ObamaCare’s mandate and penalties has endured the roller-coaster ride of truth since Obama first blasted Hillary Clinton for the idea during the 2008 presidential campaign. When campaigning against Hillary Clinton for the Democratic presidential nomination, Obama condemned Hillary’s call for an individual mandate to purchase health insurance, alleging that Clinton would garnish workers’ wages and that Massachusetts was “worse off” as a result of its individual mandate. That all changed during the debate over ObamaCare, when President Obama mocked George Stephanopoulos for suggesting the individual mandate was a tax. He couldn’t have been clearer. “I absolutely reject that notion,” he stated unequivocally. Still later, when he realized that their best chance of passing constitutional muster was to admit it was a tax, Obama reversed himself yet again. Obama spokespersons said that the tax argument was a linchpin of the individual mandate after all.
The need for this political yo-yo became clear in the federal judge’s analysis when he ripped the administration’s Commerce Clause argument a new one. The judge noted that Congress has the power to regulate and protect (1) the channels of interstate commerce, (2) the instrumentalities of or persons or things in interstate commerce, and (3) activities that substantially affect interstate commerce. Only the third category was is at issue in this case. The secretary of Health and Human Services argued that an individual’s decision not to purchase health insurance constitutes “economic activity” and that nobody could simply avoid participation in the health care market because inevitably, every individual would require medical care. She stretched the bounds of credulity by arguing that the billions of dollars in uncompensated care every year constitutes “economic activity” sufficient to authorize Congressional authority over interstate commerce. Essentially, Washington argued that by not requiring full market participation, the interstate health care system would “implode.”
The original intent of the crafters of the Constitution’s Commerce Clause undoubtedly drew its original meaning from colonial mercantilist tradition, primarily restrictions on international trade, giving subsidy or protection to favored domestic merchants, or punishing imports or foreign producers. From that humble beginning the Commerce Clause has been inflated, expanded, and twisted like a pretzel to meet the desires of an ever-expanding federal government thirsty for control and power. It is far and away the most important tool used by judicial activists, and its interpretation was at the epicenter of Franklin Roosevelt’s socialist New Deal agenda.
We all better hope the Obamacare cases all get to the Supreme Court before President Obama has the chance to replace one of the more conservative Supreme Court justices. That alone might be enough to keep Obamacare legal and Constitutional.
Just because the supreme court says something is legal does not make it so.
We all better hope that all of these Obamacare court cases get to the Supreme Court before President Obama has a chance to replace one of the more conservative justices on the court. That alone could be enough to keep Obamacare “Constitutional.”
Can’t we just skip this annoying debate and go directly to tyranny. Personally, I know that I can’t wait to give 100% of what I earn to a few hundred aristocrats who know far better than I could ever know what is good for me.
Luckily, we have numerous examples of where totalitarian governments have worked with resounding success.
“In the 1942 decision in Wickard v. Filburn it ruled that even if the actions of an individual were not sufficient to trigger the Commerce Clause, the mere notion that if everybody acted like that individual it would affect interstate commerce was held sufficient to trigger its authority.”
And if non-activity also affects interstate commerce (like not buying health insurance) what can’t the government regulate/mandate.
Take the decisions to get married or not, and to have a family. Certainly in the aggregate it affects interstate commerce; having kids impacts the next generation of workers.
The federal government, through the First Amendment can’t dictate what church you can go to, but there is no such ban on it dictating your decision to get married or not or to have kids.
Well, keep in mind the gubmint has already regulated what kind of ceramic/plastic bowl you can deposit your daily turds in. Next step will be to regulate how often you get to make that deposit.
Maybe they’ll even require you to deposit them in a central collection facility so that they can be analyzed for proper, healthy diet. If you’re eating unhealthy foods it imposes a burden on the health care system, after all.
It is a blessing to feed the hungry and Congress looks positivels emaciated. Shall we deposit…?
The argument that “inevitably, every individual would require medical care” actually has a tiny bit of relevance – but not in the way the administration intended.
I would argue that as a society, we have already decided that no one will be denied certain healthcare, regardless of their ability to pay – ie, emergency conditions, children, etc. I feel that given that wide agreement, the cost of “catastrophic” healthcare should be spread across our entire population.
However, that does not mean the federal government should provide for it, regulate it, or even participate in it. The ideal solution to me would be to have society provide credits of some sort to pay for healthcare above a certain level (perhaps $20K or so), with individuals paying directly for their own policies if desired (like homeowners insurance).
That’s why the Constitution exists… far-sighted, our Founders.
One wonders if Michelle is contemplating requiring every child in America to “eat their vegetables” or face a tax. After all, if we do not support those vegetable growers, the entire system of interstate commerce may implode. Besides, vegetables are good for you.
Well, if the EPA gets around to applying a cap and trade tax on cows because of their harmful emissions it would amount to being a tax on meat thereby making veggies appear more desirable.
There is nothing they can do or say that will convince me that they know better than I do what I should eat. It’s none of their damn business.
“Eat more vegetables”–it is so hard to take seriously nutrition advice from a woman who has a backside the size of Ohio. (with apologies to Ohio)
Is it just me or is the “zealous left” behaving like the “religious right” of a generation ago? Mind your own business, stop trying to run everyone’s life, and you don’t know everything about everything. And that goes for “both of yous”. (to borrow a phrase from “My Cousin Vinny”)
Thankfully we have the constitution to put the brakes on these busybodies. And in the House today, they are actually reading something before they vote on it. Splendid!
Its just you. And there is a big difference between trying to persuade you to behave in a certain way and requiring you, by law, to do so.
The mandate isn’t nearly as offensive to me as the requirement that we all purchase minimum coverage defined by Federal bureaucrats rather than policies that best meet our individual needs. The entire goal of Obamacare, as with most of the Dems agenda, is wealth redistribution.
I hope and pray that this will lead to a Constitutionally mandated downsizing of government since most of what the Fed does these days is unconstitutional.
These Leftists have saved our country with their vast over-reach. Folks have awakened, and they have fallen in love with the Constitution again. The 2012 slogan? “It’s the Constitution, stupid!”
Even the SCOTUS seems to have become enamored of it again.
I’ve read the Constitution many times over, and there is nothing in there about making fat kids eat more vegetables.
Every act of Congress, every executive order from the White House, every piece of paper the federal government generates should cite that section of the Constitution upon which each rests.
“Promote the general welfare” sounds fairly broad to me.
I belabor the obvious, but there is a list thousands of items long which constitutional rulings have affirmed which are not SPECIFICALLY mentioned in the Sublime Document. Let’s start with railroads and end with…wait, there is no end.
The 10th amendment specifically states that if it isn’t enumerated in the constitution then the federal government can’t do it. Read it if you don’t believe me.
@Jones.
Right on. And not as a constitutional scholar would understand it either. Call it “naïve constitutionalism” or maybe “constitutional conservatism” (heck I would settle for “constitutional liberalism”). As a preamble to every bill, understandable by any citizen familiar with the text of the constitution.
I sometimes The Volokh Conspiracy where law prof geeks gather in cyberspace to discuss the intricacies of the law. Wow! Talk about pencil neckedness!
Right, I can’t conceive of anyone without a pencil-neck who would spend more than twenty minutes reading any one document. With the internet, make it ten minutes.
Reading versus studying and evaluating may not be sufficient to see all of the consequences and ramifications necessarily following from implementation of the particular article.
We are not looking at this issue with the fastest and easiest way to fix it and that is through State action like nullification!
There is always the act of “nullification” like that bill introduced in Texas HB-297 which states;
“The federal Act is not authorized by the United States Constitution and violates the Constitution’s true meaning and intent as expressed by the founders of this country and the ratifiers of the Constitution.
The federal Act:
(1) is invalid in this state;
(2) is not recognized by this state;
(3) is specifically rejected by this state; and
(4) is null and void and of no effect in this state.”
It also goes further making it a crime for any official, agent, or employee of the United States or an employee of any corporation to enforce any part of the health care act in Texas, and imposes fines up to $5,000 and/or five years in prison for anyone convicted of doing so.
All that needs to happen is the State Legislature have both the House and Senate to enact such a nullification bill and have it signed by the Governor. This way it doesn’t matter if the law is ruled unconstitutional or not by the Supreme Court the law is invalid in all states that nullify it!
How does this differ from John C. Calhoun’s version of nullification?
It doesn’t differ from it at all. That way lies madness. A government that can have its laws “nullified” by state governments would essentially be meaningless…how would Federal laws be enforced? If a state didn’t like one, it would nullify it. Take, for instance, a state that imports something from outside the country. What happens if the state decides it doesn’t like the import tax, excise tax, tariff, whatever? Do they simply decide not to pay it? What about Federal banking regulations? Can states simply decide they don’t need to comply with Federal law?
Hopefully, someone other than me, with more influence, will point out how silly this is…
I teach in a non profit gov’t pre school. They push the Michelle Obama food agenda. The kids just don’t eat the food. I guess putting all that food in the garbasge does keep them from gaining weight in school. Trouble is they go home and eat fried food and sit in front of a video game or TV all night instead of going to a park to play. If the parents want to kill their kids with junk food that’s their choice and the gov’t isn’t going to change that.