Taking the Gloves Off: Is the Health Care Bill Constitutional

Townhall.com ^ | November 19, 2010 | Jillian Bandes

[Kaslin]

The legal arguments surrounding the constitutionality of the health care debate are nuanced, and at the center of the debate is whether Congress can regulate a citizen’s inactivity. The Federalist Society holds its annual conference in Washington, D.C. this week, and that's one of the hottest topics. In an afternoon panel on Thursday, four legal scholars went head-to-head in a panel titled “Litigation: Debating the Constitutionality of the Federal Health Care Legislation.”

Four lawsuits in four different states have been launched challenging Obamacare’s constitutionality — in California, Michigan, Virginia, and Florida — according to the panel’s moderator, David Stras, of the Minnesota Supreme Court. So far, the California and Michigan cases have been thrown out. The Virginia case is pending. In Florida, twenty other states have latched on to the case, which has just survived a motion to dismiss. Which arguments the courts will address in that suit remain to be seen.

On the panel, Charles Fried of Harvard University Law School took the unpopular position that the the individual mandate in Obamacare was nothing more than a regulation of commerce — a regulation of activity — and was therefore completely Constitutional. The Commerce Clause in Article 1 of the Constitution allows Congress to “regulate Commerce ...among the several States,” which has provided the basis for interstate laws that govern the purchase and sale of goods and services.

“The commerce here is health insurance, and what the individual mandate does, is prescribes along with many many other rules... for the economic activity, which is health insurance,” said Fried.

The liberal professor then went on to expound his theory of limitless government power: Government has the full authority to garnish wages from its citizens in the form of taxes, he said, and the individual mandate is able to garnish wages in order to force purchase of insurance. Fried also said that the government has authority to require its citizens to buy Froot Loops, for example, though it has no authority to require its citizens to eat them. Just because the government is requiring citizens to buy health care doesn’t mean it’s requiring them to go to the doctor.

David Rivkin, a partner at the law firm of Baker & Hostetler and outspoken political activist, said that Fried's argument was downright fruity. If there are no limits to what the government can require its citizens to buy, there is no way to say one type of purchase is more valid than the other.

“The fact that there's no meaningful, judicially enforceable doctrine here dooms what you... are defending,” said Rivkin. “Any failure to purchase something has impacts.”

Rivkin agreed with Randy Barnett, a professor of legal theory at Georgetown University Law Center, who cited the “necessary and proper” clause, as well as the "substantial effects" doctrine originally proposed by Justice Antonin Scalia.

“You realize there is a limiting doctrine on necessary and proper,” said Rivkin, and that the “line between economic and non-economic activity” has already been formulated through existing case law.

Fried insisted that in practice, the government’s powers have been virtually limitless. He cited a case where the government had required children to be vaccinated — a purchase, a service, and physical pain.

“There was a needle into the body they mandated for that,” said Fried, who insisted that the only leg conservatives have to stand on were “liberty arguments,” that "make my heart beat faster.”

Rivkin insisted that government’s power had to be limited, and that the health care bill was unprecedented. Next up, he said, was the “Happiness and Welfare Act of 2011.”

[knarf]

No, and the Tea Party elects are very aware of the constitution and it's role in governance.

We all have great and high hopes for the next congress and the majority in all three branches in 2012.

God ... bless America .... again.

[BwanaNdege]

"The legal arguments surrounding the constitutionality of the health care debate are nuanced..."

"Nuanced" = Lib-speak for "deception & outright lies".

[Erik Latranyi]

After Soros’ statement that “we have to hold the line”, if we get close to a SCOTUS review of Obamacare, I expect nasty actions against Obama to preserve Obamacare “as his legacy”.

[Adder]

Pay attention to that vaccination argument. Its pretty strong.

I am no lawyer but it seems to me that that argument could be that the rationales for required vaccinations and requiring health insurance purchases are different. One is, like drunk driving laws, a protection of others from your actions vs a requirement to participate.

The “taxes” argument doesn’t hold water, there was a constitutional ammendment passed for that one....

And if the argument that government power is limitless wins, we should simply pack it up. Its fightin time.

[djf]

So you decide not to buy health care.
Then they decide to put you in jail, and give you free health care.

Can somebody please cue the “Twilight Zone” theme?

[knarf]

Received in an e-mail;

Nice list put together by the enemy. It will help me remember who the sane legislators are.

Here is a snapshot of the GOP Class of 2010’s extremism:

ENVIRONMENT

- 50% deny the existence of manmade climate change
- 86% are opposed to any climate change legislation that increases government revenue

****

This is where individual incoming GOP freshmen stand on each issue:

Key

GW: Global warming denier CC: No climate change legislation
BC: End birthright citizenship RI: Reduce legal immigration
TP: No tax increase pledge ET: Repeal estate tax
BB: Balanced budget amendment

Martha Roby (AL-02) CC TP ET
Mo Brooks (AL-05) GW CC TP ET
Joe Miller* (AK-SEN) GW CC TP ET BB
Paul Gosar (AZ-01) CC BC RI TP
Ben Quayle (AZ-03) GW CC BC TP ET
David Schweikert (AZ-05) CC BC RI TP ET BB
Ruth McClung* (AZ-07) GW CC ET BB
Jesse Kelly* (AZ-08) GW CC BC RI TP ET BB
Rick Crawford (AR-01) CC TP ET
Tim Griffin (AR-02) CC BC RI TP ET
Steve Womack (AR-03) CC BC RI TP
John Boozman (AR-SEN) GW CC BC RI TP ET BB
David Harmer* (CA-11) GW CC TP ET
Jeff Denham (CA-19) GW CC TP
Andy Vidak (CA-20) GW TP ET
Scott Tipton (CO-03) CC TP ET
Cory Gardner (CO-04) GW CC TP BB
Steve Southerland (FL-02) CC BC RI TP ET BB
Rich Nugent (FL-05) CC BC RI TP ET BB
Daniel Webster (FL-08) CC BC RI TP ET
Dennis Ross (FL-12) CC BC RI TP ET BB
Allen West (FL-22) GW BC RI ET
Sandy Adams (FL-24) CC BC RI TP ET BB
David Rivera (FL-25) CC TP ET
Marco Rubio (FL-SEN) GW CC TP ET BB
Rob Woodall (GA-07) BC RI
Austin Scott (GA-08) CC BC RI TP ET
Raul Labrador (ID-01) CC RI TP ET BB
Joe Walsh* (IL-08) GW CC TP BB
Robert Dold (IL-10) GW CC TP
Adam Kinzinger (IL-11) CC TP
Randy Hultgren (IL-14) GW CC TP ET BB
Bobby Schilling (IL-17) GW CC BC TP ET BB
Mark Kirk (IL-SEN) CC
Marlin Stutzman (IN-03) CC TP ET BB
Todd Rokita (IN-04) GW CC TP ET
Larry Bucshon (IN-08) GW CC TP ET BB
Todd Young (IN-09) GW CC TP BB
Dan Coats (IN-SEN) GW CC TP ET BB
Tim Huelskamp (KS-01) GW CC BC RI TP ET
Kevin Yoder (KS-03) ET
Mike Pompeo (KS-04) CC TP ET
Jerry Moran (KS-SEN) GW CC BC RI TP
Rand Paul (KY-SEN) GW CC BC TP ET BB
Jeff Landry (LA-03) CC TP BB
Andy Harris (MD-01) CC BC RI TP ET BB
Dan Benishek (MI-01) CC BC RI TP ET BB
Bill Huizenga (MI-02) GW CC TP ET
Justin Amash (MI-03) CC TP ET BB
Tim Walberg (MI-07) GW CC BC RI TP ET BB
Chip Cravaack (MN-08) GW TP ET BB
Vicky Hartzler (MO-04) GW CC BC TP ET
Billy Long (MO-07) CC ET
Roy Blunt (MO-SEN) GW CC BC RI TP ET
Alan Nunnelee (MS-01) CC BC RI TP ET BB
Steven Palazzo (MS-04) CC BC RI TP ET BB
Renee Ellmers (NC-02) TP ET BB
Rick Berg (ND-AL) CC TP ET
John Hoeven (ND-SEN) GW
Frank Guinta (NH-01) CC TP ET BB
Charlie Bass (NH-02) GW CC BC TP
Kelly Ayotte (NH-SEN) GW CC TP ET BB
Jon Runyan (NJ-03) CC ET BB
Joe Heck (NV-03) CC BC RI TP ET
Steve Pearce (NM-02) GW CC BC TP ET
Mike Grimm (NY-13) GW CC TP ET BB
Nan Hayworth (NY-19) GW CC TP ET BB
Chris Gibson (NY-20) CC TP
Richard Hanna (NY-24) ET
Anne Marie Buerkle* (NY-25) GW CC TP ET BB
Tom Reed (NY-29) CC TP ET
Steve Chabot (OH-01) GW CC TP ET BB
Bill Johnson (OH-06) CC TP ET
Steve Stivers (OH-15) GW CC TP ET
Jim Renacci (OH-16) CC TP ET BB
Bob Gibbs (OH-18) GW CC BC RI TP ET BB
Rob Portman (OH-SEN) TP
James Lankford (OK-05) GW CC BC TP ET
Mike Kelly (PA-03) CC TP ET
Pat Meehan (PA-07) CC TP ET
Mike Fitzpatrick (PA-08) CC TP ET
Tom Marino (PA-10) CC BC RI TP ET BB
Lou Barletta (PA-11) CC BC RI TP ET
Pat Toomey (PA-SEN) GW TP ET
Tim Scott (SC-01) CC TP ET BB
Jeff Duncan (SC-03) BC RI TP
Trey Gowdy (SC-04) GW CC TP ET BB
Mick Mulvaney (SC-05) GW CC TP ET BB
Kristi Noem (SD-AL) GW CC TP ET
Chuck Fleischman (TN-03) BC RI TP ET
Scott DesJarlais (TN-04) CC BC RI TP ET BB
Diane Black (TN-06) GW CC BC RI TP ET
Stephen Fincher (TN-08) CC TP ET
Bill Flores (TX-17) CC BC RI TP ET BB
Francisco Canseco (TX-23) CC TP
Blake Farenthold (TX-27) GW BB
Mike Lee (UT-SEN) CC BC TP ET BB
Scott Rigell (VA-02) GW CC BC RI TP
Robert Hurt (VA-05) GW CC TP ET
Morgan Griffith (VA-09) GW CC TP ET
Keith Fimian* (VA-11) GW CC TP ET BB
John Koster* (WA-02) GW CC BC RI TP ET BB
Jamie Herrera (WA-03) CC TP ET
Dick Muri* (WA-09) GW TP BB
Dino Rossi* (WA-SEN) GW TP ET BB
Sean Duffy (WI-07) CC TP ET
Reid Ribble (WI-08) CC TP ET
Ron Johnson (WI-SEN) GW CC TP ET BB
David McKinley (WV-01) GW CC BC RI TP ET BB

*- These races are currently too close to call.

Daily Kos contributor RL Miller contributed research assistance for this post.

[New Jersey Realist]

I agree 100%. I have a civics question though for someone to answer. If we have three arms to the government, Legislative, Administrative and Judicial, why doesn’t the Judicial, in particular the Supreme Court itself, just come out and say whether ObamaScare is legal or not. Why do we have to wait for lawsuits to come? I seem to recall that very thing happening back in the 1960’s where the Chief Justice took it upon himself to strike down a law. Any thoughts?

[djf]

They must wait until there is an actual case or controversy brought before them.

If they were, for example, to hear info about pending legislation that didn’t sound good, like say some Congressman introduced a bill to bring back slavery, even though it is plainly unconstitutional on it’s face, if the Supremes did anything before somebody brought a case then they would be violating the separation of powers standard.

[rovenstinez]

IF the Constitution forbids slavery, how can the US Gov’t force us all to be their slaves and buy their insurance? Personally, I’ve had 5 children, am fully retired, and in 65 years PERSONALLY been once to the hospital for tonsils, never took any of my kids to the hospital, all my kids born at home, we did home remedies. I’ve had malaria, hepatitis and West Nile Fever, and got so bad I went to the local vet to have him check me out.
#1. Eat right, not to much.
#2. Like everyone, don’t hate be joyful.
#3. Live sexually monogamous with your own spouse.
#5. Be circumcised.
#6. Not too much alcohol.
#7. No smoking.
#8. Rest every 7 days.
#9. forgive people quickly.
#10. Be happy. Work get off the couch and stop watching Orpha and hear her tell YOU how to loose weight.

This is a recipe for good health, IF I”VE SAVED the US Gov’t in Medical Costs...shouldn’t I be GETTING A REFUND?

[Pollster1]

“Nuance” is the fundamental error here. There is no nuance in a loss of individual freedom.

[Jacquerie]

"Rivkin agreed with Randy Barnett, a professor of legal theory at Georgetown University Law Center, who cited the “necessary and proper” clause,"

I highly recommend any published work by Randy Barnett. Adherence by Congress and the President to the “necessary and proper” clause would eliminate 99% of the unconstitutional shenanigans of our government

http://www.randybarnett.com/necessary.htm

[rollo tomasi]

"The “taxes” argument doesn’t hold water, there was a constitutional ammendment passed for that one...."

Yes it does in the original intention, along with "...equal protection of the laws..." which became "reversed" incorporated with "due process" of Amendment V by Bolling v. Sharpe.

Individuals earning the same amount of money have the rights to any and all deductions proscribed by the law. That is uniformity under the law. The 16th does not deal with waivers for some while others get shafted out of the cronyism. One person being "taxed" just for existing, while another, who is magically exempt, is un-Constitutional any way you cut it.

[Jacquerie]

Randy Barnett ping!

[GailA]

Obamacare and Taxes: The Final Tab (ATR.org)
link

Not to be forgotten, this part of the Stimulus bill that CONTROLs doctors has to be removed too!

Dr. David Janda explains rationing and why
Link

Obamacare Endgame: Doctors Will be Fined or Jailed if they Put Patients First by Dr. Elaina George
LINK

Ruin Your Health With the Obama Stimulus Plan
LINK

Federal Coordinating Council for Comparative Effectiveness Research Membership Recovery Act Allocates $1.1 Billion for Comparative Effectiveness Research
LINK

OBAMACARE’S LETHAL THIRD RAIL SHOCK TO COME
LINK

Toll-Free number to the Congressional Switchboard
(866) 338-1015

202-224-6121 DeMint
202-225-3021 Pence
202-225-6205 Boehner
202-225-2331 Bachmann YouTube - Videos from this email

[Flavious_Maximus]

I don’t know about that number 5. You must be Jewish. Other than that it is a good list.

[goldstategop]

The difference between the American and English conceptions of government is that in America, we understand government has only powers delegated to it. In England, Parliament has absolute supremacy and can do anything it wants and no Parliament can choose to bind or limit the actions of a successor Parliament.

In our political system, Congress cannot do anything it wants. If it can, then the limits on its authority are meaningless in practice. This isn’t what the Founders intended when they framed a written Constitution for this country.

[MichaelCorleone]

What’s the story of the 2nd Ammendment? Do we still have it or did Congress unknowingly vote to eliminate it in some foreign aid bill that they never read?

Given what I’ve been reading here we better make sure we have these rights in tact.

[GailA]

Haven’t seen any thing posted about it. And the 2nd A threads keep up to date on any suspicious actions.

My dumb state TN allows our news papers to post the link to the data base of CCW holders...I’m one. And I don’t want my name available to my son’s now freed killer. Which along with the crime situation in Memphis that I do CCW.

[Adder]

I agree and believe me I want to see this monstrosity declared unconstitutional but the proponents are going to use each and every ploy they can and the tax one is one of the weakest arrows in our quiver.

We also allow that people making the same income can take different deductions and not pay the same and that there is a class people who are exempt from paying taxes at all.

So I don’t know.All I DO know is I want no part of any of it.

Regardless of the “law”.