Update II: Unhealthy & Unconstitutional (The Baucus Edition)

Constitution,Federalism,Healthcare,Law,Regulation,States' Rights

“The power ‘to regulate’ interstate commerce … is the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control,” writes Judge Andrew Napolitano, in a WSJ op-ed.

“James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison’s understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept ‘regular.'” …

“Applying these principles to President Barack Obama’s health-care proposal, it’s clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one’s health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.”

“The same Congress that wants to tell family farmers what to grow in their backyards has declined ‘to keep regular’ the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.”

“That’s right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person’s appendix because that constitutes interstate commerce.”

Jonathan Turley—watch him mock the Tenth Amendment—would, no doubt, find Madison’s legal thought ever-so quaint.

Update I: My opinion of Turley’s latter day obsessions were reiterated in “To Bug Or Not To Bug Abu Zubaydah’s Cage”:

Forgotten in the faff over “enhanced interrogation” tactics is the invasion of Iraq. Of this war crime, most Democrats are as guilty as Republicans. The torture fracas is like manna from heaven for both parties and their media lapdogs, who cannot be coaxed out of a coma.
Whether to bug Zubaydah’s cage or not: this is a limited, small, relatively safe distraction that allows complicit journalists, jurists, politicians and pointy heads to skirt the real issue: the need to prosecute Bush, Cheney, Clinton, Kerry, for invading Iraq.

Turley, moreover, is a stickler for the letter of the law—the positive law—but not necessarily for the higher moral law.

Update II (Sept. 17): The thrust of the healthcare proposal, “unveiled yesterday by Senate Finance Committee chairman Max Baucus,” is sufficiently simple to defer to National Review, for once:

“[I]t tries to expand coverage through coercion and hidden taxes instead of through consumer choice and price competition in a free market.

Like the bills that have been approved by committees in the House and Senate, the Baucus plan is built on mandates, expanded governmental control, and taxes. It would require all Americans to sign up for government-approved insurance or face a hefty federal tax penalty — up to $3,800 per family. Employers would be required to offer insurance conforming to government specs or pay a head tax on each of their full-time employees.

There is no breakthrough miracle cure to be found here: Insurance coverage is expanded with tried-and-true, heavy-handed regulation. Americans who don’t play along will be disciplined by the IRS.

To take some of the sting out of the individual mandate, Senator Baucus promises new subsidies to some low-income families. He would limit their portion of the insurance premiums to a percentage of their income. Families with incomes at three to four times the poverty level would pay no more than 13 percent of their incomes toward insurance. But this promise comes with a lot of fine print: Workers with incomes in these ranges who are offered qualified coverage by their employers are ineligible for additional subsidization. They will have no choice but to take what is offered at work — whether they can afford it or not. According to the Congressional Budget Office (CBO), only about 13 million people will be getting subsidized insurance through the exchanges in 2014 even though there are, as of 2008, 127 million Americans under age 65 in households with incomes between 100 and 400 percent of the federal poverty line. For the vast majority of Americans, therefore, the individual mandate is simply a hidden, onerous, and regressive tax.” …

Read on.

4 thoughts on “Update II: Unhealthy & Unconstitutional (The Baucus Edition)

  1. Steve Hogan

    I saw Turley’s talk at the Future of Freedom Foundation’s gathering last year. He is good on the civil liberties, but his views on the 10th Amendment are disappointing.

    Why are otherwise intelligent individuals so willing to cherry-pick parts of the Constitution they like while ignoring the rest? If Turley and others feel something needs to be changed, there’s an amendment process. Or have they conveniently forgotten that too?

    But why go to all that trouble of getting 3/4ths of the states (States? What are those?) and 2/3rd of both houses when Congress can ignore its oath and clearly violate the thing they’re supposed to uphold. Hell, they don’t even bother reading the bills any longer!

    Let’s face it: this Congress may be the weakest, most morally-challenged collection of thieves and conmen in history. And that’s saying something.

  2. Myron Pauli

    The Supremes in Wickard v. Filburn ruled in 1942 that farmer Filburn, a commercial farmer, engaged in interstate commerce when he fed home grown wheat to his animals. Even worse was Gonzales v. Raich where pot smoker Raich was interfering with interstate commerce in 2005. Thomas is the only dissenter still on the Court. So Turley is correct about the general perversion of the Constitution by the douploistic statist Republicrats and Demoplicans. [I didn’t hear Turley objecting to such perversion; he seconded it.]

    A “living constitution” (e.g. flexible) is truly dead while a “dead constittion” (e.g. adhered to) is the only meaningful living type.

    Congressman Clyburn correctly points out that basically EVERYTHING the Congress does these days is not authorized under Article 1 Section 8.

    Here is the Court on medical marijuana and interstate commerce:


  3. Myron Pauli

    Quotes on “regulation of interstate commerce” regarding medical marijuana from the 4 written decisions in Gonzales v. Raich (2005):

    SCALIA: “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.”

    STEVENS: ” Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product”

    O’ CONNOR: “Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation.”

    THOMAS: “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”

    [Be good if everyone supplied the hyperlinks.]

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