Posted on 03/24/2010 6:44:51 AM PDT by Kaslin
A few weeks before Congress passed a law that orders every American to buy health insurance, the Virginia legislature passed a law that says "no resident of this Commonwealth ... shall be required to obtain or maintain a policy of individual insurance coverage."
Two weeks later, Idaho's governor signed a law that declares "every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty."
Supporters of ObamaCare say such legislation, which more than 30 other states are considering, has no force, since the Constitution makes congressional enactments "the supreme law of the land." But that is true only when federal laws are authorized by the Constitution, and the individual health insurance mandate is not.
The mandate's defenders say Congress is exercising its power to "regulate commerce ... among the several states." Yet a law that compels people to engage in an intrastate transaction plainly does fit within the original understanding of the Commerce Clause, which was aimed at facilitating the interstate exchange of goods by removing internal trade barriers.
Even a Commerce Clause stretched by seven decades of deferential Supreme Court rulings is not wide enough to cover the failure to buy insurance, a non-economic inactivity. The two cases that led to the Court's broadest readings of the Commerce Clause both involved production of a fungible commodity for which there was an interstate market regulated by Congress.
In the first case, decided in 1942, the Court ruled that a farmer could be penalized for exceeding federal crop limits aimed at controlling supply and boosting prices even though all of the extra wheat he grew was consumed on his farm. The Court reasoned that homegrown wheat "exerts a substantial economic effect on interstate commerce" by reducing the total amount of wheat sold.
In the second case, decided in 2005, the Court ruled that Congress could ban homegrown marijuana used for medical purposes authorized by state law. Although the marijuana, like the wheat, was never sold and never left the state, the Court said, its production undercut the federal government's attempt "to control the supply and demand of controlled substances in both lawful and unlawful drug markets."
Unlike growing wheat or marijuana, the decision not to buy medical insurance does not produce anything, let alone a commodity traded between states. Maybe so, say ObamaCare's defenders, but that decision has an impact on the demand for insurance and on the health care market (one-sixth of the economy!), which the federal government is trying to control in the same way that it tries to control the marijuana trade (with similar prospects of success).
This sort of reasoning leaves nothing beyond the reach of Congress, since anything you do (or don't do) can be said to affect interstate commerce. In its 1995 decision overturning a federal ban on possessing guns near schools, the Supreme Court cautioned against the temptation "to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." That kind of analysis, the Court warned, threatens to "obliterate the distinction between what is national and what is local."
In a recent Heritage Foundation paper, Georgetown University law professor Randy Barnett and two co-authors note that the decision upholding wheat quotas does not mean "Congress can require every American to buy boxes of Shredded Wheat cereal on the grounds that, by not buying wheat cereal, non-consumers were adversely affecting the regulated wheat market."
Likewise, federal regulation of carmakers does not mean "Congress could constitutionally require every American to buy a new Chevy Impala every year."
Yet this is the logic of the health insurance mandate, an unprecedented attempt to punish people for the offense of living in the United States without buying something the federal government thinks they should have. Don't buy it.
The problem is a state can’t stop the Feds from taxing anyone. States can opt out of various federal programs, but that doesn’t stop the federal taxes associated with those programs.
If we don’t buy it, they’ll send armed enforcers to our doors.
This isn’t regulating interstate commerce it is demanding we participate in it. Another problem is that since we can’t buy health insurance across state lines, then it isn’t interstate commerce in the first place. Remember, Obama believes the Constitution to consist of “negative” rights. Not a document that constrains the federal government from overreaching, but empowers it to do so. He is the Enfant Terrible.
This isn’t regulating interstate commerce it is demanding we participate in it. Another problem is that since we can’t buy health insurance across state lines, then it isn’t interstate commerce in the first place. Remember, Obama believes the Constitution to consist of “negative” rights. Not a document that constrains the federal government from overreaching, but empowers it to do so. He is the Enfant Terrible.
So, a little jail time. News headlines. It’s called Civil Disobedience.
Rush Limbaugh pointed out one delicious irony in all this - eventually these cases will make their way, probably sooner rather than later, to the Supreme Court - the same Supreme Court that Zero chided and insulted during the SOTU show and which the Democrats jeered at with applause and catcalls like frat boys at a kegger when he did.
The icing on the cake, of course, would be to let Samuel Alito write the majority opinion.
If the law is ruled unconstitutional (please God)then it goes down and the tax provisions go down with it. They would need to start over.
If the Fed laws really do trump everything in ALL cases, why do I have state restrictions on my right to bear arms?
Which is why we need to repeal the 16th amendment and do away with the leviathan of corruption it brings. If any other governmental entity wanted to search and / or seize an individual's property they would have to go before a judge and get a warrant. The IRS can seize whatever they want, whenever they want and the individual can do nothing to stop them. Even if your account is fully paid and their records show a balance of 0.00 they will still hold all of your assets indefinitely and there is nothing you can do about it.
A couple hundred years ago we fought a revolution over less tyranny than this
Over at American Thinker, someone pointed out that it's not just the Amish who have a legitimate claim to their religion forbidding the purchase of insurance.
Seems that to devout moslems, insurance of any kind is gambling and hence haaram.
Which I guess would excuse them from even paying the yearly fine.
And here I thought I was as pissed off as I could possibly be!
Democrats seem supremely confident that the courts will not entertain this argument. I am not so sure.
One of the Left’s biggest gripes is the influence of corporate money and corporate K-Street lobbyists. It is dangerously clear what will happen if the courts rule the Federal Government can force individuals to buy from a private company. Everyone and their mother will be spreading cash around, lobbying Congress for laws to force us to buy their product or service. The potential scale is far too huge for the courts to ignore.
Then Obama will threaten to increase the size of the court to 27 and will populate it with his own rubber stamp hacks. This will intimidate the court into going along with anything he wants.
It has been done before.
Good points. Hope. Thanks.
[Seems that to devout moslems, insurance of any kind is gambling and hence haaram.]
You’d think that someone of Obama’s “enlightenment” would know this.
It’s a ploy to get us to convert to Islam.
Its what 5 of 9 black robed (symbolism there?) judges say it is.
I know FDR tried to pack the court and failed. How can a president increase the STOTUS? I don't think the conservatives on this court would be intimidated by this bonehead. FDR was very popular. Barack is not.
The problem is a state can’t stop the Feds from taxing anyone. States can opt out of various federal programs, but that doesn’t stop the federal taxes associated with those programs.
Yes, this is true. But what happens when one region of America decides to fund its “pursuit of happiness” on the labor of another region? This happened before, with disasterous results (i.e. 1860-65). My question is if 25 or more states recognize the Bill of Rights correctly for their citizens by enacting protections from the Federal Government, would the supremes be influenced by the disproportionate takings by the Feds and move to protect the Union? Can’t see even the most liberal judge wanting to create another schism within the body politic.
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