In an interview with NewsMax.com, Judge Andrew Napolitano outlined the grounds upon which the Supreme Court of the United States ought to repeal major portions of Obama’s overweening health care legislation:
“The Constitution does not authorize the Congress to regulate the state governments,” Napolitano says. “Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done. …
That’s called commandeering the legislature,” he says. “That’s the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That’s prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.” …
The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can’t simply move in there,” Napolitano says. “And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they’re doctors, nurses, or pharmacists. The feds have had nothing to do with it.
“The Congress can’t simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law.”…
Napolitano believes the federal government lacks the legal authority to order citizens to purchase healthcare insurance. The Congress [is] ordering human beings to purchase something that they might not want, might not need, might not be able to afford, and might not want — that’s never happened in our history before,” Napolitano says. “My gut tells me that too is unconstitutional, because the Congress doesn’t have that kind of power under the Constitution.”
The sweetheart deals in the healthcare reform bill used that persuaded Democrats to vote for it – the Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others – create “a very unique and tricky constitutional problem” for Democrats, because they treat citizens differently based on which state they live in, running afoul of the Constitution’s equal protection clause according to Napolitano. “So these bennies or bribes, whatever you want, or horse trading as it used to be called, clearly violate equal protection by forcing people in the other states to pay the bills of the states that don’t have to pay what the rest of us do,” Napolitano says.
Exempting union members from the so-called “Cadillac tax” on expensive health insurance policies, while imposing that tax on other citizens, is outright discrimination according to Napolitano. “The government cannot draw a bright line, with fidelity to the Constitution and the law, on the one side of which everybody pays, and the other side of which some people pay. It can’t say, ‘Here’s a tax, but we’re only going to apply it to nonunion people. Here’s a tax, and we’re only going to apply it to graduates of Ivy League institutions.’ The Constitution does not permit that type of discrimination.” …
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In this televised interview, the Judge laid out more clearly the test for a constitutional challenge, namely that one is harmed by the legislation.
Note the comment on the impossibility of reading and making sense of H.R.4872 Reconciliation Act of 2010 (my experience) each section of which amends and alludes to other laws in the US Code, which in itself is large enough to fill a house with paper stacked to the ceilings.