ObamaCare's big problem: The Constitution

American Thinker ^ | September 15, 2009 | Thomas Lifson

[kingattax]

Judge Andrew Napolitano has a brief and lucid guide to the serious constitutional problems with ObamaCare, in the Wall Street Journal today. A Mark Fitzgibbons just noted (below), the Left is in the process of demonizing those who point to inconvenient constitutional strictures on government power. Judge Napolitano notes the expansive interpretations of the interstate commerce clause invented in the New Deal, and writes:

The Supreme Court finally came to its senses when it invalidated a congressional ban on illegal guns within 1,000 feet of public schools. In United States v. Lopez (1995), the Court ruled that the Commerce Clause may only be used by Congress to regulate human activity that is truly commercial at its core and that has not traditionally been regulated by the states. The movement of illegal guns from one state to another, the Court ruled, was criminal and not commercial at its core, and school safety has historically been a state function.

Applying these principles to President Barack Obama's health-care proposal, it's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

[Man50D]

James Madison in Federalist paper #45 expounds on the Judge's point. Below is an excerpt:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

[Man50D]

This is the key point I have been stating all along. Article 1 Section 8 of the Constitution does not expressly grant Congress the power to regulate health care therefore federal health care is unconstitutional. People need to drive this point home with their Congress critters.

[Adder]

While that is true, your congresscritter will merely point to Medicare and Social Security and tell you to take a hike.

Neither of thiose programs have been shut down because they are unconstitutional for the same reasons given.

I believe they have been upheld by the SCOTUS, actually...[tho I should do research on that.]

[Adder]

That didn’t take long....

http://www.ssa.gov/history/court.html

Sux, but there it is....

[Ken H]

I wouldn't count on any help from Justice Scalia. Unfortunately, he put himself squarely on the side of the New Deal Commerce Clause in Raich (the CA medical marijuana case):

"...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce."

Justice Scalia, concurring

___________________________________

Compare that to Justice Thomas in his dissenting opinion:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything, and the Federal Government is no longer one of limited and enumerated powers.

Justice Thomas, dissenting

[Man50D]

While that is true, your congresscritter will merely point to Medicare and Social Security and tell you to take a hike.

As the judge stated "The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines."

Medicare is unconstitutional based on the Judges assessment and Madison's excerpt in Federalist Paper #45 regardless of SCOTUS. SCOTUS also rules in favor of Unions jumping ahead of of creditors when GM reorganized which is also unlawful. A SCOTUS ruling doesn't suddenly make an unconstitutional act Constitutional. If your politician tells your to take a hike then you tell him or her they will be taking a hike in November 2010.

The contempt politicians have for constituents is the reason for the tea party rallies and people speaking up at town hall meetings. The emphasis at the rallies is to take the country back. It starts with the Constitution.

[WhoisAlanGreenspan?]

I've been searching for more info on the constitutionality of HR 3200, primarily since reading http://michaelconnelly.viviti.com/entries/general/the-truth-about-the-health-care-bills (Read the comment section following the article)

This thread seems like a good place to start so please... Post any links or suggested reading. It would be much appreciated.

[BobMV]

To be credible he would have to explain how Obamacare is different from Medicare, which is evidently constitutional. Maybe he does explain that but I didn’t read all of it.

[TangoLimaSierra]

[Adder]

If your politician tells your to take a hike then you tell him or her they will be taking a hike in November 2010.

LOL! I have been telling mine that for months now. He doesn’t even bother responding to me anymore, since we are so obviously in disagreement.
So YES, I will work hard to get his buns defeated.

[andyk]

I took the time to read the cases that the SSA refers to on the link you provided.

Those justices used the power of congress to provide for the general welfare (via its power to tax) to legitimize SS, and other New Deal acts. That varies greatly from using a tax to penalize someone who doesn't behave as the government wishes.

As it is listed as an excise in the currenly-debated legislation, I suppose they would be taxing the act of not having insurance. Otherwise, as argued here, it would necessarily rely on the Commerce Clause.

Obama arguing that it is not a tax (regardless of the plain language of the bill) tells me that our constitutional scholar of a President is going with the Commerce Clause for this one.

[MrB]

That was my thought -

it’s unconstitutional, but so what? Almost every federal law dealing with “social programs” is unconstitutional,

and the SCOTUS doesn’t bat an eye.

[andyk]

I had forgotten that Scalia said that. Sounds like it was a contrived rationalization, as ruling otherwise would have seemingly invalidated every other use of the Commerce Clause when used to simply make illegal the sale of something. If the founders meant all commerce, they would have said so...