The Affordable Care Act and Stare Decisis

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.

18 thoughts on “The Affordable Care Act and Stare Decisis

  1. Utah,

    Naturally, I agree with you. The founders were very clear on this issue: the Congress has authority to legislate on the enumerated powers and only those enumerated powers:

    Madison:
    “With respect to the two words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

    “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.”

    The problem we are facing is actually simple: we are dealing with liars who seek to usurp our INDIVIDUAL RIGHTS AND LIBERTIES and who have no hesitation to pervert our language and change our history in the pursuit of their goals. From a MODERN Progressive Paper by “The Center for American Progress:”

    Although Congress’s authority is limited to an itemized list of powers contained in
    the text of the Constitution itself, these powers are quite sweeping. They include the
    authority to regulate the national economy, build a national postal system, create comprehensive
    immigration and intellectual property regulation, maintain a military, and
    raise and spend money.

    There is no authority to regulate the national economy in the Constitution; only to provide resolve disputes between the States.)

    The problem is we have allowed these people to pervert the INTENTIONS behind the wording of the Constitution, and that can only happen when we have forgotten the Declaration of Independence.

    We are – quite honestly – in a fight for the very survival of liberty on the face of this planet, and this time, that battle will be fought on our own soil. We had best start learning to look past our individual differences and rally around those values we hold in common. If anyone value INDIVIDUAL rights and liberty, he is my ally. But if he opposes such, he/she is my enemy and MUST be treated as such – lest we ALL become serfs and our children never even know the taste of freedom.

  2. Well, everyone’s got to eat. I think we need to pass the Affordable Kell’s Kitchen Act. I will ensure that all American kiddies will eat their greens and gruel. I will also provide nutritious meals for American adults (think of the savings in health care). My plan is reasonable, and I believe it to be mouth-watering. Are you hungry yet? Take a bite; because then you’ll believe the old commercial: Try it, you’ll like it. Don’t you, Mikey?

    • I have a post coming on health care in general that probably will not go down well with some folks (Kells, you know of whom I speak) but there are things that need to be said and I don’t seem to be able to be quiet.

      It still needs a little polish, so later tonight/tomorrow. Stay tuned.

      Life cereal…good one…never heard that one before. Ha.

      • Let’s clear the air here. I was curious about your disagreement with joi. Well, I’m sorry, but I do agree with joi that health care needs to be reformed, and this is due to personal knowledge of some folks’ (including family’s) experience. I just wish the act were rewitten or reformed or rewhatever. I’m not crazy about how it stands now. So I see both sides of your disagreement (if it was even that) with each other.

        • Let me put this one bluntly:

          We do NOT have a “right” to healthcare, and the govt. has NO business meddling in ANYTHING that does not deal with protecting and preserving INDIVIDUAL RIGHTS!

          We MUST stop looking to the govt. to do for us that which we should do for ourselves…or we are already slaves.

          • Oh, I think we should “reform” it – WE SHOULD END IT!

            If we want insurance, then let some company offer a product and we can buy it for ourselves. I do not think it should be connected to employment UNLESS the company WANTS to do that. But the govt. should have NOTHING – 0 – to do with our healthcare. It is none of the govt.’s bloody business.

          • Kells,

            If it is too late to do anything about healthcare, then stop posting because it is too late to do ANYTHING about the govt. The best course left to us would be to exercise Ron Paul’s quip about being thankful that there ISN’T a border fence…

        • I swear that I don’t even remember the joiwind thing. Like I said, if I personally offended, that was never the intent. I will apologize.

          Basically the desire for health care breaks down to one thing – we have a human instinct to want to live. I wonder what the percentage of the people who support abortion is that also expect care in catastrophic situations and expect extraordinary life saving measures to be taken… The instinct to survive is an individual instinct, we don’t gather the collective together to determine if the person is worth the effort, everybody gets the max in a crisis situation and we don’t let people die unless there is no hope (or there are Obamacare death panels). That means that everybody, no matter what they say, believes this:

          “…all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

          My next post is based on that and the fact that there are 4 basic causes for catastrophic health care needs: 1) behaviors, 2) environmental causes, 3) accidents and 4) genetics, only one of which can be truly “insured” against and that is accidents.

          I say catastrophic because that is what this debate started about until the government decided that eating Twinkies should be controlled to prevent obesity to prevent high blood pressure to prevent heart attacks to prevent them from paying for a heart transplant.

  3. Home now. I can finish my thought….. So what is the answer to the regulations on doctors, insurance companies, drug companies Medicare/ Medicaid fraud, the FDA, &c.? If you boys don’t think there’s trouble in River City, you’ve got another think comin! There are plenty of people with great insurance getting screwed up their bungholes (I can use that term as I have received approval in advance).

    All’s I’m sayin is we need to pull a Luther and have a Reformation. Perhaps if Reps. would get off their duffs, they could come up with a sensible yet succinct health care bill.

    On another note, it is quite obvious to me that M. has a very bad addiction to Twinkies, which is why he is against my Kell’s Kitchen Act. He knows that Twinkies will be confiscated. What he doesn’t understand is that he can pay for a waiver, and I will then gladly give him one from my private stock (so long as he chews with his mouth closed)……

    • All’s I’m sayin is we need to pull a Luther and have a Reformation. Perhaps if Reps. would get off their duffs, they could come up with a sensible yet succinct health care bill.

      Yep. It’s called THE RULE OF LAW according to Natural Law. In other words, just leave people to make and agree to the terms of their own contracts, but then make sure the law is strict in holding the offending party accountable for violating those contracts. That will solve nearly everything you are complaining about.

      Unfortunately, as things stand now, larger businesses are able to gain favor with the govt. to write laws such that they favor the big businesses and serve to drive out competition AND make it difficult if not impossible to sue them for breaking the terms of the contracts.

      If you and I could sue or if a lawyer could ONLY draw a reasonable amount for a successful suit (i.e. NOT a percentage) and then ONLY if they win for you; and the looser pays all the fees for every party involved; and MOST IMPORTANT, a case had to be heard within no more than 6 months, things would change. But you will also have to address “pain and suffering.” The system was meant to compensate the injured party – NOT reward them. So you should ONLY collect for actual losses, and “the value of my life” – unfortunately – CAN be determined (within reason). If you show no chance of becoming Bill Gates, being awarded $100 million for a bad drug is not only wrong to the drug company, it is wrong to society.

      This is how our system was intended to function. Things will never be perfect, and I’m tired of the straw man attacks based on silly claims centered around my supposed idealism. But if we were to aim closer to this ideal and less toward the wrong-headed notion that govt. will somehow be more “fair” than a business, we “might” have a chance to correct some of the damage that has been done because we allowed it so we could let someone else worry about and pay for the things WE wanted.

  4. Pingback: Taking The Bait | The Rio Norte Line

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