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All Da King's Men

Precedent For ObamaCare Mandate ?

By Da King Published: March 27, 2012

The Supreme Court is hearing a case about the ObamaCare mandate this week. Under the mandate, all citizens of the United States will be forced to either purchase government-approved health insurance from private providers or pay a fine. The case is an appeal of an Eleventh Circuit Court decision which held the ObamaCare individual mandate to be unconstitutional under both the Commerce Clause and the Taxing And Spending Clause of the Constitution. That ruling stated the following:

... the individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975- page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.

In other words, forcing people to engage in commerce is well beyond the scope of the Commerce Clause, which heretofore has concerned itself only with regulating the production and transport of goods. This is the correct interpretation, in my opinion. I can't even fathom another opinion. If the government can force the citizenry to purchase private products under the Commerce Clause, what limit is there to the government's power over us ? They could force us to do virtually anything. If the government said we had to buy a Chevy Volt every four years, buy gym memberships to exercise five times per week, and eat broccoli and carrots every day, they could do so. The power of the government would be unchecked, which is precisely what our Founders designed the divided and limited powers of government to prevent. This is an issue of fundamental individual liberty versus government tyranny. This should be the easiest, most crystal clear case ever for the Supremes to decided ever. A slam dunk.

But when you add politics into the mix, nothing is ever crystal clear. Things become quite muddy, and the intentions of the Founding Fathers and the Constitution can be manipulated for partisan political ends. That's why it's assumed the entire liberal wing of the Supreme Court will vote to uphold the ObamaCare mandate, thus "expanding" the meaning of the Commerce Clause forever. It will be up to the conservative Justices to hold the constitutional line, and that is NOT assumed. We are not sure how they will vote.

The pro-ObamaCare, pro-tyranny folk claim to have case precedents to support their side. The problem with their claim is, none of the Commerce Clause precedents they cite have anything to do with compelling the citizens to purchase privately-made products. Here are some of the case precedents that allegedly pertain to ObamaCare (pro and con):

McCulloch v. Maryland (1819): A landmark in Supreme Court jurisprudence on the power of Congress. The court ruled unanimously that Congress could establish a national bank.

Wickard v. Filburn (1942): The court unanimously ruled in favor of congressional limits on the amount of wheat a farmer could grow, even if the extra wheat was intended for the farmer’s personal use. The limit was part of a 1938 law aimed at stabilizing wheat prices.

N.Y. v. U.S. (1992): In a 6-3 decision, the court used the commerce clause to uphold two of three provisions of federal law that used incentives to get states to dispose of radioactive waste. New York had objected because residents of remote rural areas protested such disposal.

U.S. v. Lopez (1995): In a San Antonio case involving a youth who was arrested for bringing a gun to school, the Supreme Court for the first time in decades ruled Congress exceeded its commerce clause limits in approving the Gun-Free School Zones Act of 1990. The vote was 5-4.

U.S. v. Morrison (2000): The court again ruled 5-4 that the commerce clause limits the legislative power of Congress, in this case the 1994 Violence Against Women Act. The same majority as in Lopez (with swing votes from Justices Anthony Kennedy and Sandra Day O’Connor) said there is no connection to interstate commerce for the statute, which provided a federal court civil remedy for victims of gender-motivated violence.

Gonzales v. Raich (2005): Conservative Justice Antonin Scalia joined the court’s 6-3 majority in ruling that the U.S. government via the commerce clause could enforce federal drug laws in California and other states permitting medical marijuana.

U.S. v. Comstock (2010): The court held the Constitution gives Congress power to enact the Adam Walsh Protection and Safety Act, which authorized civil commitment of convicted sex offenders on the basis of “sexual dangerousness.” Chief Justice John Roberts joined the 7-2 majority.

Here are a few other cases the pro-ObamaCare folk curiously cite as support for the ObamaCare mandate:

National Labor Relations Board (NLRB) v. Jones & Laughlin Steel Corporation, 301 U.S. 1, in 1937. The case originated in Aliquippa, Pennsylvania, where Jones & Laughlin was penalizing and discriminating against workers attempting to unionize. NLRB ordered Jones & Laughlin to end its coercive union-busting tactics.

The Fair Labor Standards Act of 1938 in United States v. Darby, 312 U.S. 100, forcing a Georgia lumber company to improve worker conditions.

In the 1950s, the Court upheld a wide range of legislation regulating everything from forms of fraud -- Federal Trade Commission v. Mandel Bros., Inc., 359 U.S. 385 (1959) and Securities & Exchange Commission v. Ralston Purina Company, 346 U.S. 119 (1953) -- to discrimination against small businesses -- Moore v. Mead's Fine Bread Company, 348 U.S. 115 (1954) -- to unfair business practices within professional football -- Radovich v. National Football League, 352 U.S. 445 (1957).

In 1964, in Heart of Atlanta Motel v. U.S., 379 U.S. 241, the Court unanimously upheld the desegregation of public accommodations by the Civil Rights Act under the Commerce Clause.

Anyone see anything in there remotely close to granting the federal government the power to force people to purchase private products under the Commerce Clause ??? No, me neither. The two that come closest are probably Wickard v. Filburn and Gonzales v. Raich, but neither comes within shouting distance. In Wickard, a farmer was prevented from growing wheat beyond the amount determined by the government, even if it was for his own personal use. That Orwellian ruling was tyrannical enough in it's own right, but it doesn't have much to do with forcing people to purchase health care. It just limited production (remember, the Commerce Clause is about regulating the production and transport of goods). Still, liberals use it as justification, even though it isn't. In Gonzales, federal drug law took precedence over state law on medical marijuana. Again, that case was about the production and transport of goods, not forcing people to engage in commerce. Gonzales only reinforced the notion that the federal government could use the Commerce Clause to restrict commerce if that commerce was against federal law.

I could find absolutely NO precedence under the Commerce Clause for the constitutionality of the ObamaCare mandate. If the mandate IS ruled to be constitutional, it will be entirely arbitrary, and entirely political. The Supreme Court can only "expand" the Commerce Clause if it WANTS to. There is no constitutional justification for it, and if the Court does do it, that is the very definition of judicial activism.

Unfortunately, judicial activism often rules the day. That's why two of the fours courts that have ruled on the ObamaCare mandate...upheld it. One of them was the D.C. Court Of Appeals. Listen to the crazy train logic from that Court:

"It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race ... or that a farmer cannot grow enough wheat to support his own family. "The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local -- or seemingly passive -- their individual origins."

Got it. Screw liberty. Screw the Constitution. The ObamaCare mandate is the same as preventing discrimination against blacks (WRONG !), and screw that farmer who wanted to feed his fricking family too. Also notice the straw man argument, "The right to be free from federal regulations is not absolute". Yeah, no kidding. Nobody has EVER argued differently, but there are supposed to be limits to what government can do. That's why we have a Constitution in the first place. What the D.C. Court is basically saying is this - WE ARE THE GOVERNMENT, AND WE WILL DO WHATEVER WE DARN WELL PLEASE !!!

Recent polls show a wide majority of Americans think the ObamaCare mandate is unconstitutional and should be overturned, but I guess that doesn't matter either.

Tyranny never changes. Never.



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