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.