Obamacare: the government’s legal arguments, part I

As the summer wears on, this will become the first in a series of posts detailing the administration’s legal arguments (hopefully, in plain English), explaining why the government believes Obamacare is constitutional. 

On March 23, the State of Virginia filled suit against the federal government alleging that the law is unconstitutional because Obamacare violated a previously enacted Virginia law which said that no resident of Virginia could be compelled to purchase insurance.  On May 24, the federal government filed its initial legal arguments in support of Obamacare.

Beginning on page 30 of the government’s memorandum you will find a remarkably circular argument that appears to define virtually everything this administration does.  It goes like this.

Congress, under its power to regulate interstate commerce, has the power to regulate the provisions of insurance policies sold nationwide.  Thus, Congress has the power to mandate that all insurance policies insure anyone who applies, regardless of their physical condition, and, at a premium no greater than a healthy person of the same age would be charged.  According to the government, this is the:

[a]ct’s larger effort to regulate the interstate business of insurance”.  (See, page 30)

From that stepping off point, the government next argues that because insurance companies will now be required to accept “all comers”, many people will postpone the decision to purchase insurance until they become sick.  (See, Massachusetts)  Thus, to prevent this from happening, the government must also mandate that all Americans purchase insurance, or pay a tax.  (Yes, it’s now called a tax, not a penalty.)

So, Congress creates the dilemma of far more people than now “freeloading” until they become sick, and then solves the self-imposed dilemma by mandating that all buy health insurance.

This is akin to your child breaking a window in your house while playing baseball, and then demanding a bigger allowance in order to pay for the broken window.

I’d hate to have to be the one arguing that point before a federal judge.

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. Dimsdale on June 19, 2010 at 3:26 pm

    "I’d hate to have to be the one arguing that point before a federal judge."


    Maybe, but I would hope that the fed judge wasn't some lefty hack appointed by Carter or something.  I bet this puppy is on its way to the Supreme Court in no time.

  2. chris-os on June 20, 2010 at 5:41 am

    Sos, you make it seem like all who are uninsured now are ill. Not the case, statistically it is the elderly who have health issues, who are already covered by "goverment health care", medicare.

    Actually the huge majority with no insurance, is the young and healthy-those who think that nothing can happen to them. When mandated to buy insurance, there will be a huge windfall of profits for the health insurance companies.

    We now pay for these people when they become ill or are in a tragic accident.

    I read that the insurers will be held to a higher standard, the mandate is that 85% of all premium payments will be paid out on care. This aspect of the reform alone is worth the cost of admission.

    Sos, I talked to a man who paid into his insurance co. for 30 years. He was diagnosed with prostrate cancer. He had surgery. His insurance co. then denied the follow-up radiation treatments prescribed by his oncologist.

    We don't need no stinkin health insurance reform?

    • Dimsdale on June 20, 2010 at 5:26 pm

      Another point that should be considered: who actually wrote this brobdingnagian legislation?  Certainly not the president, the speaker, senate president or any of the Democrats that supported, voted for, bribed and bullied to get it passed.  To this day, most of them are completely ignorant of what they passed.  If the insurance industry or their lobbyists wrote it, then you can be sure that it is rife with loopholes for them to jump through.


      A mandate that 85% of the premiums will be (dare I say it?) "earmarked" for care?  Remind me about the Social Security trust "fund".  No trust, no fund, no security.  Lotsa social(ism) though.  One giant Ponzi scheme built on a house of cards.  That is all politicians can promise us.  This is no different.


      You want health care reform?  Give the people their money (back) and tell them it is mandated but they have to shop around by themselves.  You think prices won't come down and a compromise between good care and cost will emerge?


      You can have health care good, cheap or universal.  Pick any two.

  3. JollyRoger on June 20, 2010 at 1:59 pm

    Call me a troller, but I think Obama-Care would be a boon to the economy!  I don't have to be job-locked anymore!  I can work this week and maybe half of next week, and then I can staycation in my own backyard with whatever Uncle Sam lets me keep…  Or I can take my extended unemployment and explore the southwest with my publicly subsidized jeep wrangler until I eventually total it with nothing due thanks to gap insurance and a 24 week free stay in an ICU bed!  But how could I truly help to spread the wealth around if I were not free to travel about the country, spreading the wealth that is so rightfully mine as a loyal supporter of the Barack Hussein Obama administration?   But on a more serious note; if cap and tax passes (whatever they call it now!), will $7 a gallon gas hurt the sale of Government Motors vehicles like the Jeep Wrangler which gets 15 MPG?  I'm sure they'll create some new rule or incentive which makes an exception for GM, but at what point are they rigging the game?  And at what point are they dictators?

    • Dimsdale on June 20, 2010 at 5:30 pm

      When the Constitution is converted, excuse me, perverted into a "living, breathing document", and the lefties can effectively ignore it, then you will see tyranny.


      You can't apply moral relativism to the Constitution.


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