With the SCOTUS about to take up Obamacare, I thought that this post from May of 2011 was relevant enough to bring back to the top.
Originally posted on May 11, 2011:
This week, the hearing of the first Affordable Care legal challenges started en banc (before a three-judge panel) of U.S. Court of Appeals for the Fourth Circuit. The argument is primarily about the individual mandate and the ability of the Congress to expand the enumerated powers of the Constitution via the commerce clause to include economic inactivity (i.e. not buying health insurance).
On January 31st of this year, Stephanie Cutter, Assistant to the President and Deputy Senior Advisor for Health Care Reform, said this on the White House blog under a post titled “Judicial Activism and the Affordable Care Act”:
Those who claim that the “individual responsibility” provision exceeds Congress’ power to regulate interstate commerce because it penalizes “inactivity” are simply wrong. Individuals who choose to go without health insurance are actively making an economic decision that impacts all of us. People who make an economic decision to forego health insurance do not opt out of the health care market. As Congress found, every year millions of people without insurance obtain health care they cannot pay for, shifting tens of billions of dollars in added cost onto those who have insurance and onto taxpayers. There can be no doubt that this activity substantially affects interstate commerce, and Congress has the power to regulate it.
Quoted in the Roanoke Times yesterday, acting U.S. Solicitor General Neal Katyal, who argued both cases for the Federal government Tuesday, countered that Congress was attempting to regulate “the means of payment” for health care that individuals inevitably will receive.
Katyal said the individual mandate is a means of ensuring payment for health care services and for reducing uncompensated costs that drive up premiums for people who have insurance coverage.
“One can’t opt out of it on an individual basis because we don’t know the chance that we will get hit by a bus or struck by cancer or the like,” Katyal said. “And providers can’t opt out.”
“The Congress is not asking people to buy something they wouldn’t otherwise buy,” Katyal said. “Everyone uses health care.”
So, hey, the government is just collecting money for something that you know that you are going to buy anyway, so what the heck, right?
This is a battle that goes far beyond the so called “Affordable Care Act”. This is the single most important constitutional issue that America has faced in the past 50 years.
Think that is overstatement? It’s not.
While a lot of people (myself included) have been sucked into the largely moot campaign issue of killing bin Laden, there is a clear and present danger to liberty being played out in a court already stacked against it. I say that because the three judge panel is made up of two Obama appointees and one Clinton appointee. It is not as a question of political leanings, rather it is purely an observation that Democratic appointees do not tend to be “traditionalists” when it comes to the Constitution and prefer a more “contemporary” view that this foundational document needs “help” to fit to modern sensibilities.
Assuming that this trio can be counted on to carry out their Constitutional responsibilities without the urge to “make” new law, Stephanie Cutter’s position is the most chilling because it clearly describes a total socialist outlook to the role of an unlimited and unfettered government. Not even the Social Security Act of 1935 went this far.
As we know, we have a legal system built on the concept of stare decisis, Latin for “to stand by that which is decided” or in common English – respect for precedent. Laws are built upon laws and deference is given to prior adjudications as a basis for the validity of any legal standing. Extending this established concept to Cutter’s logic, which is the basis for the government’s defense of the law, there is nothing that is beyond the scope and reach of regulation by the Federal government. Activity and now even inactivity is subject to regulation and control. This is Atlas Shrugged realized.
Imagine if the automobile industry went to the Federal government with the story that they are in decline and it is critical to the country to save them (an argument already used in the bailout of GM). With the approval of the President, Congress enacts the Affordable Transportation Act and mandates that every adult household must purchase a US made car every 2 years – if they don’t a “fee” will be collected via the IRS to compensate for the lack of individual economic activity. Never mind that you are perfectly fine with your 8 year old Infiniti or Lexus that only has 75,000 miles on it, is paid for and runs fine. Doesn’t matter, if the Affordable Care Act stands, the precedent is set to build on.
Can’t happen? No Congress would mandate purchase of cars? Well, health care delivery is a service, so how about another service? Assume that the American Bar Association, the National Lawyers Guild and the Trial Lawyers Association, all of which have substantial money invested in Democratic coffers, go to the President and say, “you know, everybody needs legal services and will use it sometime – they need financial planning and a will – and it should be updated every year. People who don’t do this have an economic impact when they get sued or die without a will. We need to do something about this crisis.” Would the Congress have the power to mandate the purchase of legal services – under the Obama administration’s defense strategy? Yes, they would.
The supporters of the Affordable Care Act would like you to believe that a decision upholding this mandate to initiate economic activity would never be used in any other way – that it is a single issue. That would be a lie – once decided, no person has control over how this precedent may be applied in the future. Congress has already used the Commerce Clause to expand far from original intent, in fact, until the 1930s, courts ruled that the Commerce Clause actually limited the ability of the Federal government to hinder the freedom of individuals – but in 1937 as Congress continued to push FDR’s New Deal legislation, greatly increasing the power of government, according to Judge Andrew Napolitano in his book The Constitution in Exile, “(The U.S. Supreme Court) simply abrogated its role and stopped enforcing the Constitution’s limits on Federal power.”
Even though it was not realized at a national level until the 1930’s, the danger was recognized by the Founders. James Madison wrote:
“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”
Forget bin Laden, there is a greater battle for freedom and security raging inside our borders. If this law is allowed to stand, your individual rights guaranteed by the Constitution are gone and America as a land of freedom will be dead within 20 years. The table is being set. We already have a country where 51% do not contribute to the cost of Federal government; we are facing the possibility of legalization of 11 million low skilled, low income Democratic voters, there are more public employees than at any point in history, financial success is demonized and we are in an economic downturn just ripe for interventionalists in the Federal government to take advantage of. Just look at what the Great Depression wrought under the guise of “taking care of Americans”. Look around at what still exists 80 years after and tell me that we aren’t staring full blown socialism in the face.