I think Obamacare has a significant constitutional defect–by requiring people to purchase a private service, e.g. health insurance, the law stretches the commerce clause beyond the breaking point. Consider: This isn’t merely regulating interstate commerce–it is forcing private individuals to engage in it. If this is constitutional, the commerce clause can be used to justify other government purchase. For example, it could force us to purchase a GM car–60% owned by the government–every five years as a way of stimulating the economy.
Virginia passed a law exempting its residents from the private purchase mandate and then sued the government to overturn it. The Feds asked a judge to dismiss the case, which a judge has now denies. From the Ashby Jones Law Blog at the WSJ:
The ruling represents a setback that will force the Obama administration to mount a lengthy legal defense of the law. The suit, filed by Virginia Attorney General Ken Cuccinelli (pictured), alleges that the law’s requirement that its residents have health insurance violates the Commerce Clause of the Constitution. Virginia’s lawsuit is one of several trying to undo the health-care law. Another large one was filed in a Florida federal court by a handful of state attorneys general. In his opinion, Judge Hudson ruled:
The guiding precedent [on the Commerce Clause] is informative but inconclusive. Never before has the Commerce Clause and Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element.
In other words, off to discovery we head.
Good. This issue is bigger than Obamacare. It literally could determine whether the Founders’ concept of “limited government” will continue to endure.
August 2nd, 2010 | 12:50 pm
[...] This post was mentioned on Twitter by Stand In The Gap and Jerry Burgess, Wesley J. Smith. Wesley J. Smith said: Judge Allows Virginia Lawsuit Challenging Obamacare to Proceed » Secondhand Smoke | A First Things Blog http://shar.es/01niU [...]
August 2nd, 2010 | 2:13 pm
This reminds me of the god-fearing, limited-government “founding father”, John Adams, who, as president, signed a bill, passed by the House and Senate in 1798, requiring privately employed sailors to purchase health insurance. Adams, “The Atlas of Independence” as my 4th grade teacher once referred to him, also signed the Declaration of Independence.
one can read the 1798 bill here:
http://history.nih.gov/research/downloads/1StatL605.pdf
Or, is Adams simply not considered a “Founder” due to his ruthless assault on liberty?
Also, I’m not aware of people being “required” to purchase insurance under “Obamacare”. Supposedly, if one wishes not to purchase, they simply pay a fee/fine/tax. If someone does not purchase, I am not aware that they will have liberties revoked, privileges of citizenship denied, termination of biological life, etc. (perhaps they could be jailed for tax evasion – but given how full our jails are and how underfunded regulatory affairs are, who knows)
While “Obamacare” does, apparently, challenge the commerce clause for many, even Scalia acknowledged in the 2005 decision of Gonzales v. Raich that the Constitution grants Congress extensive power to regulate commerce. He may have had a change in opinion from his US v. Morrison decision.
So, I guess a signed bill banning abortion or ESC research would be entirely in line with limited government, while one for health insurance is not. Makes sense to me – I want the freedom to do anything I want, anytime, anyplace and I’ll be darned if John Adams started infringing on this for the last 200 years.
I’m afraid “Obamacare” will open the door for the government requiring me to purchase a Bible, curio cabinet, and a potato ricer. Thankfully, I’m not paranoid, delusional, or hysterical.
Wesley J. Smith Reply:
August 2nd, 2010 at 2:58 pm
The only way Adams is relevant is that the AS Act was an unconstitutional infringement–as a consequence of which it was repealed by the next Administration. Hopefully, the same thing will happen here, too.
As to the ESC potential ban, it would be as a regulation of interstate commerce, not the compelling of it. Example, and I think this was way too broad, the Supremes ruled that home grown wheat (I think it was) is a form of commerce the Feds can regulate because it is fungible. I believe the same thing has been found with regard to marijuana.
I don’t know of any proposal to federally outlaw ESCR. But there is an ongoing desire to outlaw all human SCNT cloning. When we get a national human cloning ban, urgently to be wished, it will be attacked on constitutional grounds having to do with a putative “right” to conduct scientific research. Such a “right” would be exceedingly dangerous because it would obviate the power of the federal and state governments to regulate science, which could threaten the Animal Welfare Act and the Common Rule regarding human subjects testing, just to name two. If you are interested, you can do a search here to see what I have written on that.
Also, your immaturity and inability or unwillingness to engage in impulse control about religious faith continues to sweat bitterly through your comments, David. You are clearly obsessed, but please keep your demons (in the entirely secular sense) to yourself. Besides, Adams’ “god fearing” is irrelevant, but it is worth noting that he adamantly opposed slavery and was, in fact, the only Founder never to own a slave. He was a great man who made a bad mistake with the AS Act, greater than you or I (whoever you are) will ever dream of being, and indeed, one of the giants of American history.
August 2nd, 2010 | 2:29 pm
Good on Virginia and good on the judge.
Popcorn, anyone?
August 2nd, 2010 | 3:52 pm
@David: “Also, I’m not aware of people being “required” to purchase insurance under “Obamacare”. Supposedly, if one wishes not to purchase, they simply pay a fee/fine/tax.”
You just answered your own question. If an individual does not comply, they can indeed be fined. Every year. That makes cooperation a *requirement*. You should read the bill, provided you have a couple of years to get through 2000 pages of whargarrbl. The whole thing is chock-full of creepy stuff.
It ties your health records back to the IRS (shudder). It forces state medicaid workers to answer to federal department workers (wince). The red tape alone will be a mountain. And I don’t think it will solve the problem we have now. I think it will worsen it.
If this sees the light of day in court and a judge says it’s unconstitutional, then you’ve seen the system, ultimately, work. You should be pleased that we have such a system.
I personally think the law is a soup-pot full of fail, but I am not the one who will decide whether it lives or dies. If you trust in the government and think this law is sound, let the process run its course and the outcome be what it is.
August 2nd, 2010 | 7:46 pm
If Adams is irrelevant, then why mention the Founders?
I will connect the easily linked dots:
1) John Adams can be considered a “Founder” as he was the 2nd elected pres, signer of Declaration, etc, etc.
2) The “Founders” concept of limited government is referred to within a linked context to “Obamacare”, suggesting people may think “Obamacare” exceeds the “Founders” intent for limited government.
3) Adams, a Founder, signed a bill dealing with taxes and fees to procure insurance.
Therefore, this suggests some Founders may not find “Obamacare” overly hostile to limited government concepts as at least one engaged in similar acts – espoused by a majority Congress and Senate of the Founders’ time.
If I recall, it was only the Naturalization Act of the Alien and Sedition Acts that was repealed. The Sedition Act and Friends who are Aliens Act expired during Adams’ presidency. If I recall, one of the acts was neither repealed, nor expired (I forget the name of this one). The Sedition Act was passed last on July 14. The Relief of Seamen Act was passed on July 16.
The Relief of Seamen act was not part of the Naturalization Act.
Interstate commerce reg involved cannibis growth.
Don’t forget all the founders who freed their slaves, too, and then went on to start abolition groups. Or the ones who (supposedly) bought slaves from cruel masters, to spare them, then freed them.
Adams had some religious and faith leanings and several quotes indicating such; therefore, for me to refer to him as god-fearing is accurate and correct.
Other examples of hypotheticals are intended to point out that we have laws regulating some things and not others. Few individuals are consistent across all categories, because of this, motives become interesting. There is no proposed ban for stem cell research, etc, etc.
Jefferson repealed a number of earlier acts (sedition, judiciary, taxes, etc). He and Adams don’t strike me as drinking buddies. Obama was elected to promote health care reform. People are surprised he did this?
The act by the Virginia judge (Republican appointed) hardly amounts to a large victory. Like the Bush stem cell decision, it is little more than a punt. If “Obamacare” is repealed, far greater and more profound changes in the political landscape will have ensued; repeal of “Obamacare” being least of our worries.
Deeptoad,
I read an earlier (shorter) draft of the bill. I did not read the bill that passed. Oh yes, there was stuff I didn’t like. And much I like.
This gets to a point of definition, however. One can then simply say they will not participate in “Obamacare” and thus suffer a tax increase. Does one call this a requirement or a tax increase?
Wesley J. Smith Reply:
August 2nd, 2010 at 9:43 pm
Good grief. The Founders would have opposed Medicare, David. That doesn’t make Medicare wrong–I don’t think it is–but really. Talk about a ste-e-e-etch. But, as I said, I like the analogy since the next Adm. (Jefferson) and the Democratic Republican Congress repealed the Anti Sedition Act. May the same happen to Obamacare.
August 2nd, 2010 | 10:51 pm
3) Adams, a Founder, signed a bill dealing with taxes and fees to procure insurance.
I don’t think private health insurance existed in 1798. The Relief of Seamen act taxed shipmasters a fixed fee per sailor, with the money going to the US Treasury to be used for “the temporary relief and maintenance of sick or disabled seamen”.
In other words, kind of a limited version of the Medicare/Medicaid benefit I already get taxed for and am increasingly unlikely to enjoy any benefits of. Compelling citizens to purchase a private product, this was not.
August 2nd, 2010 | 10:55 pm
The Founders would have opposed Medicare? Oh, come on. That’s the most absurd speculation I’ve ever heard. Would have, could have should have. They would probably have opposed private possession of Uzis (see, two can play that stupid game).
Wesley J. Smith Reply:
August 2nd, 2010 at 11:29 pm
The founders did not believe in a strong centralized govt. They believed most of the power was in the states other than that enumerated to the Feds. Hence, Jefferson wrote a law in VA that created a form of welfare. He would never have countenanced the Feds doing it. Different times. But we are digressing. This isn’t a history blog. The post was about Obamacare. Back to the business at hand.
August 3rd, 2010 | 4:37 am
@David: “I read an earlier (shorter) draft of the bill. I did not read the bill that passed. ”
Well, don’t feel too bad. Neither did most of Congress. I wish someone could explain to me how that’s even legal.
Anyway, there is a bunch of stuff in there that doesn’t relate to health care (no shocker there), a bunch of stuff that encroaches on the states, a bunch of stuff that exposes your private medical details to the government.
And, yes it’s a requirement. If you don’t comply, you pay a fine. Kind of like paying your taxes on time. You are required to do so and, if you don’t, you pay fines.
What about Jehovah’s Witnesses and Rastafarians who don’t participate in modern medicine? They’re forced to participate in this – or pay a fine.
To me, this whole thing was a money grab and a power grab. It does little (if anything) to deal with the problems we have in health care and everything to do with making you pay a premium.
The state of Virginia and the other Attorneys General who are challenging this are absolutely right to do so.
August 3rd, 2010 | 9:48 am
SparcVark:
Technically correct and I’m leaning towards agreement. I struggled greatly in deciding whether to state the act required purchase of health care. I think the tax generated was supposed to go for a Navy/maritime hospital, in which care was paid for by general shipping insurance. This coincided with the implementation of the US Navy and the six frigates commissioned at the time, soon followed by the Barbary wars and what not – basically, America was expanding its maritime activity.
Anyways,
interestingly, why it seems challenges to “Obamacare” will fail in court are similar to issues surrounding the Relief act. By this I mean that defenders of “Obamacare” may proceed as follows in court:
a. “Obamacare” establishes a tax. Congress has the power to levy taxes.
b. but, “Obamacare” is really a tax cut – to get this tax cut, you need health insurance. (yes, I realize purchasing the service may cost more than the tax)
c. “Obamacare” also provides a means to get “new” health insurance – this falls under the commerce clause.
d. therefore, there are no problems here
For this reason, if the people do not like or want “Obamacare”, our country would need to proceed by repealing – like Tom did with John’s act. Otherwise, I’d like to thank the state of VA for needlessly tying down our courts and costing the country $$ in a stupid, fruitless endeavour. I’ve been to Richmond and Norfolk, I just can’t imagine VA putting money, effort, and time to better use.
August 3rd, 2010 | 9:07 pm
“a. “Obamacare” establishes a tax. Congress has the power to levy taxes.
b. but, “Obamacare” is really a tax cut – to get this tax cut, you need health insurance. (yes, I realize purchasing the service may cost more than the tax)”
If you believe this argument, the federal government could force you to do just about *anything* by fining you for not doing it, then calling the fine a “tax”.
Not wearing a red shirt on Tuesday? $1,000 “tax” per week! Failure to attend mandatory calisthenics? $250 “tax” per infraction! Not a member of the Reunification Church? $25,000 “tax” annually!
It’s an enormous expansion of federal government power, and the states are right to fight it. I’ve said it before, the individual mandate will have such a hard time passing Constitutional muster that I’m amazed that nobody in Congress seemed to have a clear argument for how it would be justified.
September 14th, 2010 | 6:59 pm
[...] Virginia’s lawsuit brought against Obamacare’s mandatory insurance purchase provision was allowed to proceed to trial. Now, a dfferent judge has indicated that parts of a seperate lawsuit brought against the [...]
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