A Constitutional Blow to ObamaCare

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Federal District Court Judge Henry E. Hudson in Virginia delivered a critical blow to President Obama’s health care overhaul bill Dec. 13. Hudson ruled that a key provision of the unpopular legislation, the “insurance mandate,” violates the Commerce Clause and is therefore unconstitutional. With opposition to the bill expected to escalate after the new conservative-leaning Congress convenes in January, this latest judicial defeat for ObamaCare may be the first sign of a bill unraveling from both ends.

Virginia Attorney General Ken Cuccinelli, who filed a lawsuit the same day the health care reform bill was passed in March, has consistently argued that the federal government is over-reaching its legitimate constitutional authority. He said the case was about “preserving liberty of individual Americans” and about “the outer limits of federal power under the Constitution.” The suit challenges the notion that the federal Constitution gives the U.S. Congress power to enact laws forcing Americans to buy things they do not want to buy.

In particular, the health care law seems to broaden the interpretation of the Commerce Clause to almost nonsensical proportions. Article I, Section 8, Clause 3 of our Constitution is known as the Commerce Clause. It says, in essence, that Congress has the power to regulate interstate commerce. The opinion of many is that the intention of the clause was to limit the power of the federal government. However, this restrictive interpretation of the clause has fallen into disuse in modern jurisprudence, resulting in a relatively broad construal of Congressional power in the realm of commerce. Even so, Judge Hudson said the application of the Commerce Clause in the case of ObamaCare “appears to forge new ground.”

Of primary significance in the case was the defense’s contention that the “economic activity” of not buying health insurance has an immediate impact on the health care industry when considered in the aggregate. Thus, as prior legal precedent has established, Congress has the authority to regulate this activity under the Commerce Clause. But, as Judge Hudson explained, the administration would have to demonstrate that the “non-buying of health insurance” actually constitutes an economic activity, which is highly dubious. “Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some kind of action, transaction, or deed placed in motion by an individual or legal entity,” Judge Hudson stated in his opinion of the case.

While the defense (Obama administration proxy HHS Secretary Kathleen Sebelius) argued that lacking insurance inevitably affects the aggregate, Judge Hudson argued that “[o]f course the same reasoning could apply to transportation, housing, or nutritional decisions.” The administration’s argument, therefore, “lacks logical limitation and is unsupported by Commerce Clause jurisprudence.” Judge Hudson also pointed out that, though regulation of commerce vis-a-vis the aggregate is well-established, there is significant precedent distinguishing genuine economic activity from inactivity. Only the former is clearly within the scope of the Commerce Clause; the latter is “beyond [its] historical reach.”

In an instance of legerdemain, the defense had tried to disguise the insurance mandate by calling it a “tax,” as opposed to a “penalty” (or at least, if it is a penalty, there is no relevant legal distinction between the two). The power of taxation is relatively uncontroversial, constitutionally speaking. Unpersuaded by this maneuver, however, Judge Hudson called it a “tactic to enlarge regulatory license.”

Compared to Judge Hudson’s decision, prior rulings on the constitutionality of ObamaCare have been less propitious for the opposition. Among the nearly two dozen legal challenges to ObamaCare, there was a ruling by U.S. District Judge Norman K. Moon in Lynchburg, VA. He dismissed a lawsuit brought by Liberty University arguing that the individual and employer mandates are unconstitutional under the Commerce Clause. Liberty had contended that the ObamaCare mandates penalize people for inactivity, that is, the act of not buying health insurance. But Moon said decisions about health care “substantially affect the interstate health care market.”

This ruling followed a decision in Michigan, where U.S. District Judge George C. Steeh sided with the Obama administration, ruling that if a person doesn’t buy health insurance, he or she is making a conscious decision to go without it. And if enough individuals make the same decision, everyone sips from the stream of commerce. So, congress is empowered to manipulate the flow.

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  • Guest

    To the Left our Constitution is just an anachronistic relic and an unnecessary impediment to establishing collectivist Peoples Republic of America. The Collectivist Court of Appeals will overturn this decision and that will later be affirmed by the Collectivist Super Supreme Court of the pending Soviet States of America.

  • Tekov Yahoser

    I don't get why they just didn't impose a tax ( Constitutional) and then just rebated it on your 1040 upon getting Health Insurance. It would have been really, really simple…

    • Cuban Refugee

      Have you seen all the mandates and regulatory filling that's included in the crap sandwich otherwise known as ObamaCare? It wasn't about HEALTH, it was about CONTROL OF THE MASSES.

      • Tekov Yahoser

        I agree

    • coyote3

      Not so fast there, hoser. Taxes "are" constitutional, however, the underlying subject matter on which the tax is based must also be constitutional. Also, the administration of the tax/rebate is also subject to constitutional scrutinay

      • Tekov Yahoser

        Totally agree, just thought it would be easier to jam down our throats.

  • davarino

    Its got to suck to be Obama. Just think, he will now beat Carter out for worst president ever. He will be a one termer and everything he got passed will be over turned and everything he wanted to pass will be beaten down. The amazing thing is that he was so popular just two years ago. People, do your research before you vote for somebody, rather than relying on their good looks, or the way they talk, or how well the play the sax. This is the presidency, this is serious stuff, with serious consequences.

    • Tanstaafl

      C'mon, think of Oprah. She feels so bad about endorsing Obama that she is leaving the talk show business.

    • Chezwick_Mac

      Let's not be presumptuous about Obama losing. Truman & Bush 1 were similarly written off…and both won. Kennedy's first year and a half were an unmitigated disaster, yet he rebounded after the Cuban missile crises and surely would have won a second term had he not been murdered.

      Much depends on the state of the economy a year and a half from now…AND on the caliber of Obama's Republican opponent. Let's not become complacent; defeating this man is a civilizational imperative.

    • Dennis X

      But you voted for bush twice, right.

  • American_Flag

    Davarino – you are right! Yet the mass media outlets continually elavate O. He can do no wrong, ever. Sad.

  • http://qwest.com Steve Chavez

    ILLEGALS will be exempt in all cases! Aren't they the reason our health care is so expensive since the hospitals and doctors pass on their costs of "free for illegals" to us and insurance companies? But we could do what Michael Moore brags about: Go to Cuba. It's free health care and theirs is superior! OR, we could move to Mexico, renounce our U.S. citizenship, cross back as an ILLEGAL, and then get free health care and if you have ten kids, they'll qualify for the Dream Act! WHAT A COUNTRY!

  • AnimalFarm

    I fail to understand why Obama's "compromise" about the tax rates makes people think he's pivoting to the right. The Bush "tax cuts" are a liberal's dream. It gives people who don't pay a dime in federal tax a "rebate", aka a handout, another entitlement. No wonder the demonrats like 90% of it, it's right up their alley. The only thing Obozo had to give up was taxing the rich extra, but for the return he gets, it's not a bad deal. Most of us in the middle/higher middle class get screwed. What's depressing is the idea that Republicans will back this horrible extension of handouts, which gets more loaded with freebies and goodies by the day. This is Porkulus II, and Obama knows it. He's pretending to hate to have to go along with it, but it gets him exactly what he would otherwise have no chance of getting, a second Stimulus. Republicans should vote to let the Bush tax expire, and implement something truly good, like the Fair Tax, or at least a Flat Tax.

    • sflbib

      "The Bush 'tax cuts' are a liberal's dream. It gives people who don't pay a dime in federal tax a 'rebate', aka a handout, another entitlement."

      Are you referring to the earned income tax credit, the Fair Tax 'pre-bate', or what?

  • AnimalFarm

    And to be sure, Oblather is a nothing man. In the past two years he hasn't come up with a single thing himself. He signed whatever got put on his desk, the same way he'll read whatever is on the teleprompter. The guy is a self-absorbed narcissistic buffoon whose only reason for being president is to live like a celebrity with all the perks, and wreck the country he despises if he can. He's lazy, unprincipled, unskilled, untrustworthy, incompetent, unpatriotic and most likely an unconstitutional president. He's not eloquent either, but he's good at reciting teleprompters. His administration is a thugocracy.

    • Dennis X

      But you voted for Bush twice and got the counrty into this mess to begin with.

      • coyote3

        You have a point, Dickey Cheney would have been a much better president.

      • AnimalFarm

        The country is in the mess it's in primarily because of the housing market collapse, which set off the banking collapse. Starting with Carter, then greatly expanded by Clinton, the idea that everybody is entitled to own a home brought about this disaster. Fanny and Freddie (presided over by Barney Frank, in cooperation with Chris Dodd), made loans right and left to people who didn't even have a job, much less could pay off a loan. You could even borrow 120% of the home value to buy furniture for it, without hardly forking out a single dime. Banks were bullied by the government and people like Acorn into making loans or else. Bush brought up this issue repeatedly and, as you may recall, an infuriated and indignant Barney Frank (with his party agreeing with him) said that Fannie and Freddie were just peachy, Bush was just being a fearmonger. In '06 Republicans lost control of the Congress, which made things even worse. Bush did a lot of hated things, mainly growing the government to a monstrous size, mega spending and trying to out-democrat the democrats. The current potus has worsened the problem exponentially.

  • okrahead

    Obama's White House Counsel (Attorney) has issued a memo outlining the President's strategy in light of this ruling, and it got leaked! Read it here… http://beautifulletters-bls.blogspot.com/2010/12/

  • USMCSniper

    Liberals really do hate the United States Constitution. If they loved it, liberals wouldn’t spend so much time trying to subvert it. This is either through the courts by having liberal activist judges and Justices legislating unconstitutionally or via unelected bureaucrats making “rules” they have no business making. It also occurs when Congress or state legislatures write laws that turn the Constitution, and our rights, on its ear. The Obamacare health deform seems to be such a law (and will hopefully be overturned or repealed in full).

    • coyote3

      At one time, when any congressman or senator proposed legislation, they had to cite specific provisions of the constitution that delegated power to the federal government to exercise the proposed power, i.e., all federal power is delegated by the constitution. No power, no authority to act. No power, no action. Doesn't matter if th legislation, feeds the hungry, cures the sick, and decreases sea levels. If it is illegal it is illegal. They changed that requirement about the time of the War of Northern Aggression, because they knew that the federal government had no delegated power to do what was being done at the time, and if there was a debate the proponents would lose, big time. Now, of course, they can always amend the constitution, but they don't seem to like that route. They changed th

      • trickyblain

        Don't you mean "The GREAT and JUST War of Northern Agression"?

        And isn't firing on a federal fort to start the war an act of "agression"?

        And what if the legislation essentially eliminates the requirement that Congress declare war, and authorizes the Executive Branch to make the decision? Is that illegal, too?

  • greatj

    Obama,Pelosi,Reid,and the rest of the Democratic party pushed this down the throats of the American people.They even bribed congressmen and senators for billions to vote for it.They demand everyone has to sign up for it.Obama and the Democratic party are not going to tell me what i must do.Obama is a disgrace.

  • Paul

    I think the solution is basically a three tier system.

    Tier 1: Funding 100% via tax dollars is for basic healthcare extended to everyone in the country, covering immunizations, inexpensive but effective treatments for various common ailments (diabetes), gunshot/traumatic injuries (i.e. car accidents), end of life etc.

    Tier 2: Those that choose pay for healthcare insurance policies (nationwide) that upgrade from what Tier 1 pays for. The individual should also be allowed to choose from a wide range of options. If you don’t want to pay $1000/year to cover a procedure that has a 0.1% of happening and 1% success rate you shouldn’t have too. If 500K lifetime limit fits your budget and not a 1000K so be it. The market place (both provider and customer (via the shared risk pool provide by insurance)) will determine the market value.

    Tier 3: Those with effectively unlimited money in which they can pay for whatever procedure they wish to afford. This tier helps to turn some experimental low success rate/extremely expensive treatments into affordable options for Tier2 which in turn will hopefully then lead to even more effective/affordable approaches that it can be included as Tier 1 treatments.

  • USMCSniper

    The House passed a repeal of the "don't ask, don't tell' policy that has stifled the service of gays in the military. This is a constitutional blow to the people of the United States because military preparedness is secondary to accomodating the debauchery and deviancy of Homosexual and Lesbian perverts.