“The 4 Best Legal Arguments Against ObamaCare”
Damon W. Root’s is a senior editor at reason magazine. His 24 March, 2012 article has argued well with “The 4 Best Legal Arguments Against ObamaCare.”
- When a reporter asked then-Speaker of the House Nancy Pelosi (D-Calif.) back in October 2009
“where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”, Pelosi’s response was to dismiss both the reporter and the question. “Are you serious?” she sneered. Nadeam Elshami, Pelosi’s communications director, later amplified his boss’s response, telling CNS News, “You can put this on the record. That is not a serious question.”
So it seems the Supreme Court has a different opinion…
- The U.S. Supreme Court thinks that it is. On Monday March 26, the Supreme Court will begin hearing three days of oral arguments devoted to the constitutionality of the Patient Protection and Affordable Care Act, including its controversial “requirement to maintain minimum essential coverage.” This requirement, also known as the individual mandate, forces all Americans to buy or secure health insurance under what Congress claims is its power “to regulate commerce…among the several states.”
4. The Individual Mandate Threatens the Foundations of Contract Law
- American contract law rests on the principle of mutual assent. If I hold a gun to your head and force you to sign a contract, no court of law will honor that document since I coerced you into signing it. Mutual assent must be present in order for a contract to be valid and binding….After all, there’s nothing mutual about the government forcing you to enter into a binding contract with a private company….The framers of the Constitution “would never have given, and in fact did not give, Congress, through the guise of the Commerce Clause, the power to gut the foundation upon which the entirety of contract law rests.”
This is really not about “Obamacare,” it’s just the process the Liberals will use to mandate all sorts of laws they desire. Fundamentally controlling the people in whatever means they deem appropriate.
3. The Individual Mandate Cannot Be Justified Under Existing Supreme Court Precedent
- Defenders of the individual mandate will tell you that of course Congress has the power to compel every American to buy health insurance from a private company….It’s true that the Supreme Court has greatly expanded Congress’ regulatory powers.
For brevity, Mr. Root cites case law where there are precedents relating to agricultural issues. In these cases, crops were consumed at the state level and the Federal government used the Commerce Clause to govern the situation. For example, the government paid farmer not to grow crops. However, it was always related to participating in commercial activity.
- Yet [none] of those precedents stretched the Commerce Clause so far as to allow Congress to regulate inactivity—such as the non-act of not buying health insurance. As the National Federation of Independent Business argues in its brief, “uninsured status neither interferes with commerce or its regulation nor constitutes economic activity. Instead, the uninsured’s defining characteristic is their non-participation in commerce.” The Supreme Court has never before granted Congress the unprecedented power to regulate inactivity under the Commerce Clause. If the Court sticks to its own precedents, it won’t do so now.
It would seem that it logically follow sthat the Commerce Clause does not apply to cases where there is no participation in commerce and, therefore, it cannot be used to mandate people to buy medical insurance.
2. The Individual Mandate Rests on an Unbounded and Unprincipled Assertion of Federal Power
- Does the Commerce Clause allow Congress to do anything it wants so long as an economic activity is remotely involved? Under the government’s theory of the case, yes, congressional power is essentially unlimited. As the D.C. Circuit Court of Appeals remarked in its ruling on the individual mandate: The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause. As the multi-state challengers put it in their Supreme Court brief, “there is no way to uphold the individual mandate without doing irreparable damage to our basic constitutional system of governance.” At a minimum, the Court’s conservatives will expect the solicitor general to lay out a plausible limiting principle for congressional power under the Commerce Clause.
The theory of America was that we had a blank slate to build a nation and a government for the people. The Federal Government is chipping away at the foundation of limited government. Point two by Mr. Root contends that this will lead to unknown and larger powers by the Federal Government, if this passes muster at the Supreme Court.
1. The Individual Mandate Violates the Original Meaning of the Constitution
- Article 1, Section 8 of the U.S. Constitution grants Congress the power “to regulate commerce…among the several states.” The framers and ratifiers of the Constitution understood those words to mean that while congress may regulate commercial activity that crossed state lines, Congress was not allowed to regulate the economic activity that occurred inside each state. As Alexander Hamilton—normally a champion of broad federal power—explained (Federalist 17) the Commerce Clause did not extend congressional authority to “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.” In other words, the Commerce Clause was not a blank check made out to the federal government.
Obamacare is huge and no one really knows what is in it. Repealing it is may not be feasible and, in some cases, it may benefit some, like those with pre-existing conditions, who have been excluded in the current system. The government has heavily regulated medical care for years. To be appalled at Obamacare’s overreach is a little disingenuous, we should have been upset many years ago with the government overreach long ago. I am personally not for repealing Obamacare, but I am for quickly changing things that are not in our national interest. I am for taking care of those who cannot care for themselves. I am for able-bodied people carrying their fair share of the burden…as PresidentObama routinely contends. I do not think the Individual Mandate will hold up with the Supreme Court…. and rightfully so….
