How the Supreme Court Should Have Ruled

June 30, 2012

The following is how a unanimous Supreme Court should have ruled with regard to the Affordable Care Act (Obamacare).

The issue before this court is whether the Affordable Care Act passed by Congress in 2010 is constitutional.  Specifically, does the Congress have the power to legislate medical care or medical care insurance coverage?  This Court finds that it does not.

Congress’ enumerated powers are found in Article 1 Section 8 of the U.S. Constitution.  No less than James Madison confirmed in Federalist Paper #45 that “The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”   And in fact, nothing in Article 1 Section 8 of the Constitution can be construed to mean that Congress has any power to legislate medicine, medical care, or the insurance coverage thereof.

Now, some will claim that Congress retains powers not enumerated in the Constitution.  In the first place, why then did the authors enumerate any powers at all in the Constitution?  Secondly, how can the meaning of the Tenth Amendment be ignored?  There is no ambiguity as to the meaning of, “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.”  James Madison in Federalist Paper 45 again, “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”  Thus, the power to legislate health care, like marriage, education, driving licenses, and other “objects of the ordinary course of affairs” resides with state governments not the federal government in our system of governance.

But, even that explanation of enumerated powers does not satisfy those that are voracious in their hunger to do good and enact measures at the federal level of government that will take care of us from cradle to grave.  It is not the job of this Court or really any court to determine the social worthiness of legislation.  The job of the courts is to determine the law, decide constitutionality, and dispense justice by protecting rights.

So, it is wrong for political forces to use vague terms from the Constitution to further their ends.  The most often used term is the so-called Interstate Commerce Clause.  The 16 words in the clause have historically been used to allow Congress to regulate everything from speed limits on the nation’s roads to handicap ramps on sidewalks to regulating lawn mower emissions.  But the original intent of, “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes” was not to give Congress the power to regulate all things commercial.  It was to make “normal” or “regular” commerce between the states.  Under the Articles of Confederation the States had a habit of enacting impediments to free trade between them.  Alexander Hamilton alluded to this in Federalist Paper #22 and indicated his belief that a “national control” (Interstate Commerce Clause) to restrain this impulse was necessary.  Thus, in the case Gibbons v. Ogden (1824), this Court used the Interstate Commerce Clause to strike down an anti-free trade act of the legislature of New York.

Therefore, it is found by this Court that the Affordable Care Act of 2010 is hereby deemed unconstitutional.  No justification whatsoever can be found for Congress to have assumed the power under the U.S. Constitution to pass this act.  It is hereby declared null and void.

Of course, it is not surprising that the Court did not follow the Constitution in its ruling.  A long time ago, we lost all semblance of the constitutional republic the Founding Fathers gave us.  Now we are stuck with a make-it-up as you go, lawless regime.  Consequently, we are stuck with a massive federal boondoggle which will ultimately raise the costs of health care, bankrupt the county further, and move us closer to National Socialism where government funnels through legislation and regulation consumers to favored corporations.  In this case the insurance industry.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina

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Obamacare is Unconstitutional – Part 2

April 8, 2010

So, let’s see, towards the end of last year both houses of Congress passed a form of health care reform despite close to sixty percent of Americans being opposed to both bills.  A few weeks later, the usually liberal voters of Massachusetts in a true sign that the polls were not lying about America’s opposition to Obamacare, essentially replaced the late Godfather of the Socialized Medicine Movement in America Ted Kennedy with a candidate that vowed to defeat the president’s far-left scheme for health care.  Scott Brown’s victory took away the Democrats’ 60th seat in the Senate thus rendering them impotent in overcoming a Republican filibuster that would certainly have been employed to derail Pelosi, Reid, and Obama’s dream of European style health care in the U.S.  There was utter panic in Washington.  Schemes were devised to thwart the will of the people and those evil Republican fat-cats.  We heard talk of deem and scheme and reconciliation being used to circumvent the Constitutional mandate of an up or down vote.  Eventually, Nancy Pelosi devised a way for the House to approve the Senate bill with amendments that the Senate could vote on through reconciliation sparing them the need for 60 votes to end debate.

It seemed the Democrats were able to do the impossible – pass an unpopular bill that has eluded them for close to 100 years without any Republican support and 22 Democratic defectors.  And they did it without even violating the Constitution.  Ah, but not so fast.  Article 1 Section 7 of the Constitution reads, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”  The Senate bill which has revenue raising provisions in it, namely a new Medicare payroll tax, an excise tax on “Cadillac insurance plans, and a tanning tax, did not originate in the House as the Constitution requires.  Thus, Obamacare is unconstitutional.  Those compassionate politicians really ought to read the fine print before they do us anymore favors.

Now, I am not naïve enough to believe that any court would invalidate the new health care legislation based on the above Constitutional violation.  That is where we find ourselves in 21st Century America – with a federal government that would rather pull a fast one than live by the rule of law.  As I have argued earlier and will argue again here the whole piece of legislation that has come to be called Obamacare is unconstitutional on many levels.  Under Article 1 Section 8 health care or anything close is not one of the enumerated powers of Congress.   Anything that is not an enumerated power of Congress is left to the states under the 10th Amendment.

Of course, liberal interpreters of the Constitution always ignore what they don’t like and cite those clauses that they say gives Congress the ability to do whatever.  For the sake of not being redundant, we will move on from our discussion of the “general welfare” and “necessary and proper” clauses that we had last week and instead focus on a another clause big government types like to misinterpret – the interstate commerce clause.

This clause also found in Article 1 Section 8 simply says, the Congress shall have power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes…” It was included in the Constitution in reaction to the failure of the Articles of Confederation in preventing states from erecting protectionist trade barriers against each other.  Essentially, the clause gave Congress the power to ensure a free trade zone between all the states.  No less than the Father of the Constitution, James Madison confirmed this in an 1829 correspondence with Virginia politician Joseph C. Cabell,

“Yet it is very certain that it grew out of the abuse of the power by the importing       States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”

The interstate commerce clause did not give Congress the power to enact minimum wage laws, worker safety regulations, Social Security, health care legislation, or the thousands of other statues Congress has enacted through the years.  As a matter of fact, Madison also confirmed this in Federalist Paper 45,

“The powers delegated by the proposed Constitution to the federal government are    few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The above text blows a huge hole in the argument of statists that the Constitution is a liberal document that gives wide discretion to Congress to provide for us from cradle to grave.  According to Madison, whose fingerprints are all over the document, no far-reaching powers were ever given to Congress.  In essence, Congress was given jurisdiction over “war, peace, negotiation, and foreign commerce” while the states had jurisdiction over “the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”  Under this definition, health care falls under the domain of the states.  Of course, that is where it has been until Obamacare.

I understand that through the history of this country the Congress has taken great liberties (no pun intended) with regard to passing unconstitutional acts and the Supreme Court has let it.  But, Congress has never required Americans to buy a product or service from a private provider.  The Court must strike this provision of Obamacare down otherwise Congress’ power would become virtually limitless.  Getting away with violating Article 1 Section 7 is bad enough, but if the Court allows Congress to get away with forcing Americans to purchase a product ultimately at the end of a gun barrel, then we are further along the road to a fascist state then I even imagined.