If Obamacare Squeaks by This Time…

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The fate of Obamacare, particularly whether its individual mandate provision exceeds the constitutional limits of Congress’ power, is now in the hands of the Supreme Court. Although a decision is not expected until late June, the Left is already trotting out its narrative that any outcome other than a complete upholding of Obamacare would represent an act of unrestrained judicial activism that will endanger the very legitimacy of the Court.

In its lead editorial on Sunday April 1st, for example, the New York Times declared that there has been “no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.” The Times attributed this “disastrous” trend to – horror of horrors – “a political ideology that limits government and promotes market freedoms, with less regard to the general welfare.”

Senator Chuck Schumer (D-NY) parroted the Times editorial when he appeared on NBC’s “Meet The Press” the same day. Overturning Obamacare, he said, would cast the justices voting in the majority as judicial activists.

What the Times‘ editors, Senator Schumer and the rest of the chattering class on the Left conveniently ignore is that the “political ideology” of limited government they so revile is precisely what animated the Founding Fathers to create the constitutional framework protecting the people and the states from the exercise of unlimited federal centralized power. Consider the following quote from James Madison:

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America. [James Madison, Letter to Edmund Pendleton, January 21, 1792.]

Was it really so surprising that a Supreme Court justice who takes the Constitution and its founding principles of limited government and protection of individual liberties seriously would ask, as Justice Kennedy did during the oral argument on the individual mandate, “whether or not there are any limits on the Commerce Clause?” Was Justice Scalia so out of line when he said that “the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers.” The Left thinks so.

Let’s suppose the Supreme Court does end up rejecting the constitutional challenge to the individual mandate and decides that it is a legitimate exercise of Congress’ power under the Commerce Clause. Obamacare will still not be home free from a further constitutional challenge. It could come as soon as the centralized government rationing mechanism, which Obamacare uses to rein in the nation’s overall health costs, ends up denying a patient the financial means to pay for critical health care that the individual and his or her doctor deem medically necessary.

Ironically, the next challenge could will be based on the same line of reasoning that the Supreme Court had used to justify one of the Left’s most beloved precedents – Roe v. Wade.

What does Roe v. Wade have to do with Obamacare? It’s all about the meaning of “liberty” under the Constitution’s Due Process Clause.

The 5th Amendment to the Constitution says that “no person” shall “be deprived of life, liberty, or property, without due process of law.” The 14th Amendment extends that basic protection of individual life, liberty and property against any arbitrary action by the various states. Roe v. Wade applied the Due Process Clause, particularly its protection of personal liberty to make decisions about one’s own body, in upholding a woman’s right to choose to have an abortion to terminate a pregnancy without any undue burden imposed by the government.

Justice Kennedy expounded on the meaning of liberty, in an opinion he co-authored that re-affirmed the Roe v. Wade decision. He explained that protection of individual liberty involved:

the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy… At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [Planned Parenthood Of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).]

Obamacare’s fundamental restructuring and regulation of the nation’s health care services necessarily affects the relationship between the government and the individual when it comes to decisions as personal as the care of one’s own body. This includes governmental decisions on what type and level of critical care should be funded at all.

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  • davarino

    The Ice Queen Sebilius shows her disregard for human life with her comment about dialysis. All of them are like this, they dont care. Why dont they care? Can anyone answer my question? You know they are some day going to be in the same predicament, and yet they dont care. Why? Because these EVIL, TWISTED, COLD HEARTED, VAMPIRES arent going to be living by the same rules we lower life forms have to. They will get all the best care, no expenses spared, because they are the ruling class, the proletariat. Even the ones that are uninsured now will get the bandaide and an aspirin for their ailments. I am sure something much better would have been proposed if EVERYONE, proletariat and us schmucks, had to abide by the same rules. But allowing some to be exempt from this evil law is no law at all.


    • rightleaningcat

      You have summed up exactly what I believe to be true. The connected and wealthy won't feel a thing because they won't have to participate and the poor will be subsidized. It's so easy to dictate to others what you are not required to be a part of.

  • jacob

    The Emperor doesn't realize how naked he is, in spite of his sycophants singing his accomplishments
    Now he decided to take on no less than he Supreme Court but this time it gives me the feeling that he
    bit off more than what he can chew and we can only wait foir him to backpedal full speed like all the
    times he has gotten the HOOF IN MOUTH disease as he did with the Cambridge, Mass. police…..

    Will the morons seduced by his mermaid song of "CHANGE" wake up this time and make him the
    THANK GOD deserving one time President and start cleaning out the sewer his "Administration is ???

  • Zundfolge

    If the Supreme Court legitimizes the individual mandate in Obamacare, America (at least as the Constitutional Republic we've all come to know and love) is over. Period.

    The precedent once set will be impossible to remove without a constitutional convention run solely by folk that think like our founding fathers (so absolutely 110% impossible).

  • Jaladhi

    I think Obamacare and it's individual mandate is toast now specially after President tried to intimidate the supreme court. It's all history now!!! No self respecting justice will uphold the mandate. I wouldn't be surprised if it loses by a vote of 7-2 and not just by 5-4.

  • mrbean

    The women's vote for Obama is driven by their illusion that he cares more about my kids than my conservative husband and their Kim Kardasian "Mandingo" sexual fantasies syndrome. Obama's base is free-loading tribalist blacks, left wing academics and the liberal MSM, government employees and unions, illegal aliens, convicts, and the dead, BUT…. it is the American soccer moms and single liberal women who may put this clown in office fo a second term. And…. you thought it couldn't het any worse!

  • tagalog

    I don't get it; how is overturning a law by the Supreme Court replacing a legislative act with a law made by the court? If the Supreme Court overturns Obamacare, won't the result be that we don't have Obamacare and we return to the former status quo in the health care market, not that Obamacare will be replaced by some other law? Or am I being naive?

    • Jim_C

      You are correct at least in the short term. I think one way or another coverage HAS to be universal and mandatory. But it needn't be "government run;" and its really the fault of congress and the guys who take them golfing that we can't figure that out.


    Another constitutional challenge I'd like to see would be to the waivers for Obama's friends and supporters. The President does not have the authority to exempt certain favored citizens from the requirements of Obamacare or any other law. If many of the gullible simpletons who vote Democratic were forced to feel the first few stings of Obamacare (such as losing their employer-provided coverage) now instead of in 2013-14 as the Democrats so cynically intended, they might turn against the Democrats and the 2012 election could be as bad for Democrats (meaning as good for America) as the 2010 election was.

  • Schlomotion

    The individual mandate IS unconstitutional, and is an affront to personal liberty. But is it an idea of "the Left?" No. It is an idea put forth by groups that are both on "the Left" and on "the Right" as they have so named themselves. Consider the History of the Individual Health Insurance Mandate:

    • Sage on the Stage

      But it's instructive that the Left has thrust the PPACA on us in its present form: 1-The PPACA is a job killer. It eliminates the tax deduction for employee prescription drug benefits. Companies can no longer take tax write offs for this expense; thus they fire people. 2-PPACA is a poison pill for Doctor-owned hospitals; as there are many regulations in the bill that prevent Doctor-owned hospitals from expanding. 3-There is a real estate transfer tax in the PPACA, of 4% of the value of the home. It goes without saying that a REAL ESTATE tax doesn't belong in a HEALTH CARE bill. 4-Scientologists, Screen Actors Guild members, Amish, are exempt. Why should Americans pay for the health care of those who are exempt? And last, but not least, 9 million Americans would still be without health care, under the PPACA. WHO needs this nonsense?!

      • Schlomotion

        I agree.

      • Jim_C

        Fine, you indict the Left–but what has the Right EVER done in terms of health care in this country except stand in the way of anyone trying to reform this unsustainable system? The notable exception being Nixon, who proposed something similar to Obama, only to have democrats stymie it because they weren't getting the whole enchilada. We've known at least since Nixon's time, and probably before, that this current system couldn't be sustained. Aside from some weak points about tort reform, what has the Right done?

  • http://americanpatriotcouncil.com/ Mike in VA

    I believe there is a legitimate 5th Amendment case (unconstitutional taking) to be made against the ObamaCare individual mandate. However, it would be far better if the SCOTUS did its job and overturned this unconstitutional mandate before 2015.

  • elmysterio

    The "individual mandate provision " is a travesty, as is most of the rest of the legislation. It's a far cry from what's really needed. There's no question that the state of health care in the united states is completely lousy. Considering the US spends more per capita on "health care" with far less favourable outcomes than other industrialized nations, something significant needs to be done.

    Now something that I truly don't understand is why are the American people (in general) opposed to a Universal Healthcare system similar to the ones in every other industrialized nation? I really don't get it.

    • Jim_C

      I could not agree more. It is not simply a choice between the unsustainable system we have now and some government-run soviet nightmare. Profit and choice can be integral–but the system HAS to be universal.

      Part of the problem is that some groups stand to lose some money if we move away from the system we have now, and they've spent a lot of money to either defeat or else "frankenstein" this legislation.

  • Flowerknife_us

    The good slaves will recieve care.

  • pyeatte

    There will be a special place in hell for people that withhold critical care like dialysis, with no appeal.