Several weeks ago I wrote two posts dealing with the constitutionality of Obamacare based upon the remarks of Mr. Hoyer (D. Md.) and Ms. Pelosi (D. Ca.). Mr. Hoyer insisted that the mandate that all have insurance was clearly constitutional based upon Congress’s power to tax, while Ms. Pelosi insisted the mandate was constitutional based upon Congress’s power to regulate interstate commerce.
But, I have now found the definitive treatise on the subject. Not only have I found it, but, I have found it in a most unusual place…the bill itself! The Senate Bill released by Sen. Reid (D.Nv.) yesterday actually devotes 3 pages (of the svelte 2074 page bill) to an explanation of why the Senate believes it has the power to mandate that all have insurance.
Sen. Reid has decided to side with Ms. Pelosi on this one…the mandate is constitutional based upon Congress’s power to regulate interstate commerce. (Personally, I believe that is the weaker of the two “theories”, but, what the hey.)
Should you be so inclined, you can find Reid’s alleged justification beginning at page 321.
In all my years of legal practice reading countless laws, I have never seen Congress within a bill explain their view of the constitutionality of the very bill they are passing. This portion of the Reid bill almost reads like the Summary of Argument section that one would find in any brief filed in the Supreme Court.
But, the real laugher is that Section1501(a)(3) even cites a Supreme Court opinion which is claimed to support their position. The only problem is that the case cited doesn’t support their position. All that U.S. v. SouthEastern Underwriters Assn. holds is that because insurance companies do business across state lines, Congress has the power to regulate insurance companies under their power to regulate interstate commerce. But, that’s not the question.
The question is whether Congress, under the interstate commerce clause, can mandate that all Americans purchase a product simply because that product is sold across state lines. If the answer is “yes”, Congress could mandate that all Americans purchase everything from bicycles to wheel barrows. At the risk of putting you to sleep, I will say again…Congress has the power to tell Florida that it must let Georgia peaches be sold in Florida, but using that power, it cannot then tell all Floridians that they must buy peaches.
Reid on Constitutional Law fails miserably in understanding that distinction.