printNot even the US Solicitor General Donald Verrilli can muster a spirited defense of ObamaCare. Said Verrilli, almost apologetically, on Tuesday before the Supreme Court: “Maybe they were right, maybe they weren’t, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it.” [Oh really?]
Our state’s Attorney General Rob McKenna sees this as the most important case of our lifetime on Federal power under the Commerce clause. The Supreme Court was treating it very seriously, as have all the courts so far, in ruling on the individual mandate. The power to order individuals into private contract, says McKenna, is made up. It’s not as if it had been lying around undiscovered.
It’s a shame that McKenna seems to both support and anticipate ‘severability”—an outcome whereby the individual mandate is severed from the rest of the law, which is upheld.
To the fatuous point of the health-care market being unique, and thus requiring special treatment by the state, McKenna counters that uniqueness is not a constitutional principle.
The issue here is not healthcare policy but Federal power, he says, intimating that Obama’s “politburo of proctologists” cannot “create commerce in order to regulate it.” This is a first, claims McKenna.
As was pointed out in “Destroying Healthcare For The Few Uninsured,” the number of uninsured, by choice or not by choice, is grossly exaggerated.
“The key legal thinker in developing the case against the Affordable Care Act’s individual mandate” is Facebook Friend Randy Barnett. Randy is “the originator of the activity/inactivity distinction” being used in the arguments against Obamacare.
Here is Randy’s interview on Ezra Klein’s WaPo’s blog.
Especially pertinent, in the Klein interview, is Randy’s distinction between “the government’s power to tax in order to pay for Medicare, which is a single-payer insurance program that [you’ll] get when over 65,” and the same entity’s constitutional authority to compel the individual to “self-insure on the private market before [he’s] 65.”
RB: “There are several answers, but I’ll limit myself to two. First, there’s the text of the Constitution itself. The text of the Constitution itself gives Congress the power to levy taxes on people and on income. We can’t dispute that. It does not give Congress the power under its commerce power, at least not expressly, to make them do business with private companies.
The second point I would make is that the duty to pay taxes is part of your duty to support the government in return for the protections the government gives you. What the government is claiming here is this power — and this ought to disturb people on the left — to make people do business with private companies when Congress thinks it’s convenient.”
It’s safe to say that even libertarians like Randy who might uphold the elaborate public works sprung from the General Welfare and Interstate Commerce Clauses as constitutional, have to agree that Thomas Jefferson would probably be appalled with it all.
RELATED:
* “LIBERTARIANISM & FOREIGN POLICY: A REPLY TO RANDY BARNETT”
* “Whither HellCare?”
* Patient Protection and Affordable Care Act Cases
* Wednesday Transcript & Audio: Supreme Court: The Health Care Law And Medicaid Expansion
The fact that even a reasonable percentage of Americans, though not a majority as the leftist whores in the media attest, support Obamacare or any other personal invasion of an obviously corrupt and power grabbing federal government is a monument to mass gnorance and gullibility.
Having already made inroads to illegitimizing itself as in the Roe v Wade and Kelo v New London decisions, the Court need only approbate Obamacare to conclude the concinnity of our three branches of government as coequally illegitimate.
The Executive branch went illegitimate when it abrogated its Constitutional duty to secure the borders (Mexico), protect its citizens (Arizona), and legally deal with illegal aliens. I should think this premeditated mal-misfeasance absolves taxpayers of their duty – yes?
The Legislature went illegitimate when it passed a 2500 page bill without anyone having read it as well as the admission no-one could know what was in it until it was passed. In the competition for the blue ribbon ‘best in show bastard’ the Legislature has a considerable lead for its creativity as its efforts most resemble passing satire in lieu of law.
I have worked in the health care/hospital industry since 1973. I have watched history repeat itself so many times in those nearly 40 years that my head is spinning.
This is about Money and Power in that order. There was no health care crisis in 2008 except for the Illegals storming the ER’s of US hospitals. That won’t be solved by Obamacare. The Feds own numbers showed 20-40 million still not insured by this Power Grab legislation (just about equal to the numbers of Illegals when this all started).
I don’t know why anyone is upset about the Medicare mandate – I don’t want to be forced into that, but the law doesn’t allow opting out. Back in 1965, most old people had no insurance, so were thrilled to have this new “bennie.” Now, we Boomers look at it and say “Where’s my Free Choice???”
I think Govt. and Employers, one and all need to get out of the medical insurance business. Give me the tax deduction and let me shop for my own insurance.
The taxing comment is partially true; the Constitution provides taxing authority to the central govt. via either an excise or a capitation, That means a tax on activities (excise) or property (direct). Additionally, the excise is for only activities that the central govt. has an ownership interest and the direct is restricted via the apportionment requirement. For more information and details, see losthorizons.com.
I need to clarify my confusing sentence – My question is why aren’t people also upset about the Medicare mandate? Why wasn’t Medicare used as the precedent for Obamacare in that you can’t opt out?
” First, there’s the text of the Constitution itself. The text of the Constitution itself gives Congress the power to levy taxes on people and on income. We can’t dispute that.”
That’s why, sadly, the constitution is at the least horribly flawed, and at the worst a carefully crafted scheme giving birth to the harpy-government we have today. Supporting the “worst-case” conclusion is Jefferson’s own replacement of the Lockean phrase “Life, Liberty, and Property” with the fraudulent “life, liberty, and the persuit of happiness” phrase we have today. Jefferson would be proud: after all his brain child grew up big and strong, and is now the apex predator.
Thieves. Nothing better. In many cases far worse.
As long as people get caught up in the “theft for a good cause” thought track, they will always wind up where this country is now.
You can’t steal for ANY reason and have a good outcome. (The “theft for services rendered” track is equally fallacious, as even the most basic reasoning shows.)
There’s actually 2 mandates involved in ZeroCare. (1) the requirement that everyone not privately insured buy the gov’t ins., and (2) a requirement that private insurers cover pre-existing conditions. This second mandate is in fact the key to the whole racket; it turns private insurance into a welfare program. And, since it cannot – unlike the gov’t – print money, the private health insurance industry will go out of business fairly soon via skyrocketing costs and premiums. Then, even if the SC rules against the 1st mandate, most people will have no option but the gov’t insurance pay-in. Until that all kicks in, of course, DC will have to finance the whole mess by even more debt creation, but that won’t stop them…45% of every dollar they spend now is debt creation. In short, the SC better throw out the whole law, not just the mandate, or the Reds win anyway.
My own constitutional interpretation (as a citizen/libertarian/sometimes historian) is that government can tax to raise money but not use taxation to create powers otherwise not allowed. This is somewhat similar to John Marshall’s dictum in McCulloch v. Maryland on state levies in violation of the Constitution: “the power to tax involves the power to destroy”.
If you allow either (a) unlimited interpretation of “interstate commerce” (e.g. head-scratching is related to interstate shampoo sales so government can regulate scratching) or (b) unlimited taxing power (e.g. everyone is taxed $ 1 million but you get a $ 1 million “tax credit” for buying shampoo) – then the constitution has ZERO meaning as a document of limited enumerated powers.
In this sense, Randy Barnett, is too much of a wimpy court libertarian (in the Rockwellian interpretation) since it attacks the legal form of Obamacare instead of its generic substance (controlling human behavior).
Morphed by legal subterfuge into a more acceptable form, then Obamacare all turns “constitutional”.
Barnett is also a vigorous advocate of using the Supreme Court – 14th Amendment – to permit federal oversight of lots of state laws – a position that has a major downside as well as an upside.