Yes, Virginia, Obamacare is Unconstitutional

Allahpundit at HotAir has the latest Democratic attempt to stop the Obamacare repeal train:

Sheila Jackson Lee: Repealing ObamaCare is unconstitutional

It contains this little nugget of “progressive wisdom” –

“The Fifth Amendment speaks specifically to denying someone their life and liberty without due process,” she said in a speech on the House floor moments ago. “That is what H.R. 2 does and I rise in opposition to it. And I rise in opposition because it is important that we preserve lives and we recognize that 40 million-plus are uninsured.

She continued, “Can you tell me what’s more unconstitutional than taking away from the people of America their Fifth Amendment rights, their Fourteenth Amendment rights, and the right to equal protection under the law?”

Jackson Lee mentioned the names of several people who she said would be helped by the national health care law, including a schizophrenic, a dialysis patient, and somebody whose mother cannot otherwise get dental care. “I know they would question why we are taking away their rights,” she said.

Here’s a little something that I wrote in late November after the election:

Yes, Virginia, Obamacare is Unconstitutional

The supporters of the President’s health care “reform” initiative are already talking about what a wonderful cornucopia of benefits it presents, a veritable horn of plenty with no costs to anyone – oh, and if there are costs, everybody will be forced to pay, so that makes it fair. Well, they are whistling past the graveyard about a serious and present issue – that the Patient Protection and Affordable Care Act of 2010 is provably unconstitutional due to the individual “mandate”. Since the crafters of this legislation left out a severability clause, if one part is found to be unconstitutional, the entirety goes. There is a very strong constitutional argument to support the dismissal of this law and at the current count, 20 state’s Attorneys General have filed suit to start the adjudication of the Act. Virginia’s filing encapsulates the suits filed by Florida and the other 18 states.

On October 4, 2010, the Washington Legal Foundation filed an amicus curiæ
brief (essentially a “friend of the court filing) in the process of Virginia v. Sebelius (one of the constitutional challenges to the federal health care reform law) brief on behalf of fourteen legal scholars in the U.S. District Court for the Eastern District of Virginia urging it to declare unconstitutional the mandate provision of the recently enacted federal healthcare overhaul. The case, Commonwealth of Va. v. Sebelius, involves the Commonwealth of Virginia’s constitutional challenge to the Patient Protections and Affordable Care Act (PPACA), a federal law containing an individual mandate that would require all uninsured Americans, under threat of civil penalty, to purchase health insurance for themselves and their dependents. In its brief opposing the federal government’s motion, WLF argued that even the broadest Supreme Court precedents interpreting the Constitution’s limited grants of congressional power do not give Congress the authority to compel Americans to force a product they do not want.

Professor Ilya Somin of the George Mason School of Law was the principal author of this brief in support of Virginia’s motion for summary judgment, which argued that neither the Commerce Clause nor the Taxing Clause authorizes Congress to punish an individual’s decision not to buy health insurance.  WLF filed an earlier brief at the pleadings stage arguing that the individual mandate is not authorized under the Necessary and Proper Clause.

The fourteen constitutional law professors that joined the brief are:

  • Jonathan Adler, Case Western Reserve University School of Law
  • George Dent, Case Western University School of Law
  • Michael Distelhorst, Capital University Law School
  • James W. Ely, Jr., Vanderbilt University Law School
  • Elizabeth Price Foley, Florida International University College of Law
  • David Kopel, University of Denver Sturm College of Law
  • Kurt Lash, University of Illinois College of Law
  • David N. Mayer, Capital University Law School
  • Andrew Morriss, The University of Alabama School of Law
  • Leonard J. Nelson III, Samford University’s Cumberland School of Law
  • Stephen B. Presser, Northwestern University School of Law
  • Ronald J. Rychlak, University of Mississippi School of Law
  • Steven J. Willis, University of Florida Levin College of Law
  • Todd J. Zywicki, George Mason University School

The outline of the Brief is as follows, the full brief is here: http://www.wlf.org/Upload/litigation/briefs/CLA-Virginiav.SebeliusAmicusBrief.pdf.

  1. THE INDIVIDUAL MANDATE IS NOT AUTHORIZED BY CONGRESS’S POWERS UNDER THE COMMERCE CLAUSE
    1. Existing Commerce Clause Precedents Do Not Give Congress The Power To Regulate Mere Inactivity
      1. Gonzales v. Raich
        1. The individual mandate does not regulate “economic activity”
        2. The individual mandate cannot be upheld as a regulation of non-economic activity to implement a broader regulatory scheme
        3. Raich‘s rational basis test does not apply to this case
    2. Other Commerce Clause precedents do not support the Secretary’s position
    3. The Text And Original Meaning Of The Commerce Clause Undercut The Secretary’s Case
  1. THE INDIVIDUAL MANDATE IS NOT AUTHORIZED BY THE TAX CLAUSE
    1. The Individual Mandate Is A Regulatory Penalty, Not A Tax
      1. The mandate fits the Supreme Court’s definition of a “penalty”
      2. This court need not inquire into Congress’s “hidden motives” in order to find that the mandate is a penalty
      3. The mandate is not a tax merely because it might raise some revenue for the federal government
      4. Congress may use non-tax financial penalties to enforce its other enumerated powers, but not to regulate activities that it cannot otherwise reach
    2. Even If It Is A Tax, The Individual Mandate Is Not A Tax Authorized By The Constitution
      1. The mandate is not an income tax
      2. The mandate is not an excise tax
      3. If the mandate is neither an income nor an excise tax, it is either an unconstitutional direct tax or no tax at all
  2. THE INDIVIDUAL MANDATE IS NOT AUTHORIZED BY THE NECESSARY AND PROPER CLAUSE
    1. The Scope Of The Necessary And Proper Clause
    2. The Individual Mandate Fails The Five-Part Test Adopted By The Supreme Court In United States v. Comstock
      1. No deep history exists of the federal government’s compelling individuals to purchase insurance products against their will
      2. The individual mandate does not accommodate state interests
      3. The individual mandate is extremely broad in scope
    3. The Individual Mandate Is Not “Proper”

The full filing by the State of Virginia is here: http://www.wlf.org/Upload/litigation/briefs/CLA-Virginiav.SebeliusAmicusBrief.pdf.

Far from being a “done deal” this bad law is likely to be undone. The most focus from the media has been on what the legislative action in the House will look like with Speaker Boehner vowing to never let it be enacted (limiting funding of the provisions), but I think that it is far more likely to be struck down via its lack of constitutional compliance.

Morality is an individual value. It does not come from legalities, it comes from God and a belief in the Golden Rule of do unto others as you would have them do unto you. There are people in our country who seek to substitute government for God and to attempt to legislate their brand of morality for the masses, to create a “standard” of acceptable behavior driven by fiat. Just ask yourself where you see this type of activity: China, North Korea and Iran come to mind. Granted, these are extreme examples but the thing that they have in common are tyrannical totalitarian/Marxist/communist governments. The Left will say that we should look to Sweden, Norway, France and the UK as models – but we aren’t like the EU and we are not Brits. We fought a war and forged a nation to not be British.

Let’s be honest, no compassionate person ever wants to see anyone suffer because they can’t afford health care, when suffering can be alleviated and is not, that is immoral…but this is not about health care. This is about erosion of self determination and individual freedom. Noble aims can create horrendous unintended consequences. Attempts to legislate a corporate morality will lead to more control over the individual and that “morality” will be subject to the whims of the people in charge at the time.

The “soft sell” for socialism began in the United States with the implementation of the Social Security Act of 1935 and the Current Tax Payment Act of 1943. For over 70 years, this idea has become so ingrained in the fabric of our political discourse that what would have been unthinkable just 30 years ago is now somehow avant garde.

Read this, compare it to the current Democratic Party rhetoric and actions and think about it for a just a moment:

  1. We are committed to the overthrow of the presently existing, oppressive Republic and all of its economic and social institutions. The party favors:
    1. The abolition of private property.
    2. The establishment of reform programs, in which the government will take over the assets and distribute it for the common good of all.
    3. The ownership of all industrial productive forces by the government, so that they can be operated for the benefit of all the people rather than the capitalists.
    4. A foreign policy that will build friendly relations between America and its former enemies since both are allies against capitalism.

Progressivism alone is in a position to complete the great work of permanent peace, to heal the thousand wounds from which humanity is bleeding, to transform the plains of Europe and America, trampled down by the apocryphal horsemen of war, into blossoming gardens, to conjure up ten productive forces for every one destroyed, to awaken all the physical and moral energies of humanity, and to replace hatred and dissension with fraternal solidarity, harmony, and respect for every human being[…]

To the American people: The cause of your misery is the fact that corporations and capitalists are exploiting workers to get rich themselves. Americans, unite to get rid of this terrible burden.

With some minor edits to modernize it, this is the platform of the Communist Party of Germany of pre-WWII (http://users.stlcc.edu/rkalfus/PDFs/027a.pdf ). See any similarities?

We must demand that we not go down the path of serfdom. This law is part and parcel of an effort to drive us to more socialism and eventually we will wake up and wonder where the freedoms of our fathers went. Our legal system relies on precedents. If this law stands, it will mean that the government has the power to do anything and everything that the ruling class sees fit.

This is called tyranny. It must be opposed. If we do not, we do not deserve to be called free men.

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