Big Lizards:Blog:Entry “Mandatory Madness”

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March 29, 2010

Mandatory Madness

Hatched by Dafydd

Virginia has passed a law exempting its citizens from the federal insurance mandate contained within the ObamaCare law as enacted; in addition, twelve other states, led by their attorneys general, have banded together to file a lawsuit, also seeking to overturn the insurance mandate.

Thus there is a nonzero probability that ObamaCare's most tyrannical element -- the federal "mandate" for everyone to buy government-approved health insurance -- will be struck down. We will find out in the fullness of time which camp is accurate, the one that predicts the Court will never intervene to strike down such a "big law" passed by Congress and signed by the president -- and the camp that says the Court will be forced to make a substantive ruling because the issue is so stark, so pregnant, and so egregious.

Simply put -- which is just what Rep. Michael Burgess, R-TX, 96%, did -- if the feds can pass a law ordering citizens to purchase specific goods from particular, government-approved, private companies, it would open the door to a horrible new form of covert control to benefit specific lobbyists and donors at taxpayer expense:

[I]f the mandate in the health care law requiring individuals to purchase health insurance or be penalized is upheld by the courts, the federal government could mandate anything, such as requiring all Americans to purchase a General Motors car.

The Washington Times rolls the ball a bit farther:

Both of the state lawsuits challenge the federal government's authority under the Commerce Clause, which grants Congress the power to regulate commerce among the states. The Florida case also cites a violation of the 10th Amendment, which reserves those powers not spelled out under the federal government in the Constitution to the state governments, and argues that the health care law's expansion of state Medicaid programs threatens state sovereignty.

Among the arguments against the law is that because it does not allow for purchasing insurance across state lines - the insurance exchanges are state-based - the buying of health insurance does not constitute interstate commerce. In addition, the plaintiffs say, not purchasing health insurance does not constitute an economic activity.

"Thus far in our history, it has never been held that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services," Virginia Attorney General Kenneth T. Cuccinelli II argues in his state's lawsuit. "To depart from that history to permit the national government to require the purchase of goods or services would ... create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers."

The cases raise a profound question of constitutional balance: Should we interpret the Constitution in such a way as to ratify the Founders' principle of limited government? Or should we instead interpret it as the current administration prefers, even if that is to expand the scope of federal control tenfold, on grounds of judicial deference to the elected branches?

In other words, whether Congress is restricted only to those tasks listed in the enumeration clause (U.S. Constitution, Article I, Section 8), all else being forbidden... or whether the only restrictions are those actions specifically prohibited by the Constitution and its amendments, and anything not mentioned is an unenumerated but protected power of Congress. Which is the default position when specific areas are not mentioned in the organic documents? The courts have gone round and round on this question.

The question is not only timely, it's also timeless. It determines whether we are citizens or subjects:

"The remarkable thing about an individual insurance purchase mandate is you are not being subject to a requirement by virtue of any economic activity you engage in -- you're not doing a damn thing; you just exist," [David B. Rivkin, jr., counsel for the state plaintiffs] said. "If this is upheld, then the federal government can do everything it wants subject only to the restrictions contained in the Bill of Rights."

That really is the question here. I'm not sure about the Burgess example of mandating that everybody in America buy a car manufactured by Government Motors; but can Congress pass and the Executive enforce a law mandating that every worker in the United States pay dues to a (government approved) union? That hypothetical seems perilously close to the mandate that forms the core of ObamaCare... and the more I think about it, the less "hypothetical" it seems.

But I'm very optimistic about this particular case -- at least once it reaches the Supremes. Don't count me in that rumba that thinks the Court will never find the mandate unconstitutional because that would "interfere" in the operation of another branch, which such pessimists say violates "judicial restraint."

In fact, it's the very belligerence and in-your-face arrogance of the Pelosi-Reid Democrats that gives me such hope. The Democrats made no effort to abate their tyrannical tendencies, giving them full vent instead -- dictatorial, partisan, raw, and very, very unpopular.

Given the nature of the current Court, this is probably the best moment to bring such a case before the Nine. We currently have four reliably conservative votes -- Antonin Scalia, Clarence Thomas, Samuel Alito, and of course the Chief Justice, John Roberts -- and one somewhat squishy justice, Anthony Kennedy; Kennedy is not a solid conservative, but neither is he a solid activist.

It's true that judicial restraint gives deference to the elected branches of the government; but the philosophy has never taught that such deference requires justices to bow to the legislature or the White House, even when there is a clear constitutional violation. For example, this very Court just struck down the D.C. gun-prohibition law and looks likely to strike down even state bans on "keeping and bearing arms." This bodes well.

We cannot rely upon such a favorable ruling from the Supreme Court to save our tender loins, of course: The only thing certain about such a ruling is that it will occur some time from now, probably long after the November elections -- and maybe even after the presidential contest in 2012, depending on how long the cases kick around the district and circuit courts first. (That is, if it ever eventuates at all.) The electorate will already have passed judgment on the politics of ObamaCare and whatever else the lame-duck 111th Congress manages to jam down between now and January.

But a decision striking down the mandate on grounds of enumerated powers, the lack of applicability to interstate commerce, and the Tenth Amendment could play a major role in "repealing and replacing" ObamaCare, even while Barack H. Obama remains president, and even if the Senate Democrats retain enough votes to block cloture.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, March 29, 2010, at the time of 11:43 PM

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Comments

The following hissed in response by: Xrlq

Among the arguments against the law is that because it does not allow for purchasing insurance across state lines - the insurance exchanges are state-based - the buying of health insurance does not constitute interstate commerce.

Don't know about the other arguments but this one is frivolous. For one thing, there is no federal law against selling insurance products across state lines, only state laws against selling insurance products that aren't approved for sale in a particular state. For another, to the extent they are conceding Congress could pass a law requiring State A to allow the sale of insurance products that are only approved for sale in State B, they've pretty much given up the argument that insurance isn't interstate commerce subject to regulation by Congress.

The above hissed in response by: Xrlq at March 30, 2010 3:48 AM

The following hissed in response by: GW

You are right that this matter goes to the fundamental issue as to the nature of our government. Indeed, even our Constitutional Scholar in Chief has previously criticized our Constitution on the grounds that it only tells you what the state and federal government “can’t do to you.”

This would mark a massive expansion in government power from the negative - to regulate unwanted activities under the police power and the commerce clause; grafting on for the first time a power to force particular wanted activities by every person in America simply because they are American citizens.

That is a power so fundamentally different from that previously wielded by our government that I am aware of no authority for it in our history. Nor can any particular clause of the Constitution be read to authorize this. Even the term "to regulate commerce between the states" by its terms would not extend to individual mandates. There are probably 20 colorable arguments to be made against finding the health care mandate Constitutional.

That said, the left believes that they Courts should be able to rewrite the Constitution by fiat, and they do so shamelessly. This really will come down to how much Prozac Kennedy has with his coffee on the morning when this case is decided at the Court.

We really do need a new Constitutional Amendment directing the Courts to make every effort to identify and decide issues of Constitutional law in accordance with the intent of the drafters, leaving issues of social policy to the ballot box and changes to the Constitution to the means and methods identified in the the Constitution itself. That latter seemed to work quite well through the early 20th century, until activist Courts made such Amendments unnecessary.

The above hissed in response by: GW at March 31, 2010 10:51 AM