printIn 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.
The strategy employed by the advocates of the sorry “health care” legislation seems pretty obvious. The point is to get their foot in the door. Several years are likely to pass before a case winds its way through the glacially slow legal system. Even then, any SCOTUS finding is probably going to be very narrow in scope, leaving the majority of the law intact. Either way, I suspect that they will have destroyed much of what remains of private insurance in the interim.
The more promising approach is nullification by the states. It could happen immediately and take root before the worst effects of government run care are felt.
While the states are at it, they could also permit out-of-state insurance coverage, thus giving its constituents a desperately needed dose of competition. Ultimately that is what will drive down costs and make care affordable for everyone.
I hope the Judge is right about this.
Greg, since when is being right a guarantee of being successful?
Mr Hogan has it right. We can stand on our heads and spit nickels, legally speaking, and spend years leaping legal hurdles but in the final analysis we are depending on the Supreme Court for judgement. An iffy exercise at best.
We need both, court fights and states that refuse to comply and anything else available, including the highly unlikely new congressmen/women repealing it in 1010 or 12. Whatever works but the most important thing is not to put all the eggs in only one basket.
It would be nice to have people like Judge Napolitano on the court instead of the semi-politicians we now have. While the Court might strike down some things on narrow technical grounds (such as commandeering the states which merely allows the feds to just administer the program directly), I doubt that they would really slay the beast. Spending earmarks are certainly legal but different tax rates / laws for different states will have trouble.
However, Socialist Insecurity, Medicare, and Medicaid have nothing to do with the Constitution of 1787 or the 10th Amendment. But since 1937, we have allowed internment of Americans based on ancestry, declared that a chemo patient smoking pot interferes with interstate commerce, said that a teen ager can be punished by the state for displaying a “Bong Hits for Jesus” sign on a sidewalk in a public parade, legalized dual citizenship (a true oxymoron) in spite of Congress’ intentions, approved coerced drug testing of children, and numerous other idiocies. Remember that 4 justices thought that requiring a PRIVATE organization like the Boy Scouts to accept Gay scoutmasters was not protected by freedom of association.
This nonsensical welfare state may end when the government goes BANKRUPT.