I have read the United States Constitution on more than one occasion. I have read it just to read it.
I have read it looking for specific information, and no where on that document does it say
anything about government making life changing decisions on my behalf. Read more
Recently a new Constitutional “myth” seems to be gaining traction. It comes from those on the left who, although declaring the Constitution “over 100 years old, and confusing”, have apparently decided that the Constitution isn’t so bad after all, if it can serve their purposes. Read more
Well, I guess that makes the reading of the Constitution on the floor of the House a little more than a gimmick, heh? Read more
Yesterday on the floor of the House of Representatives members read the United States Constitution. I have heard that this is the first time in our history that this has happened. Although a few on the left scorned this process, criticism seemed to dim almost daily. Maybe it is time for all of us to read it as well.
Read more
Yesterday, United States District Court Judge Roger Vinson heard oral arguments in the case brought by Florida and nineteen other states challenging the constitutionality of Obamacare’s requirement that all obtain health insurance or pay a penalty. Of course, the federal government is now calling it a tax, not a penalty when arguing its constitutionality, but that is beside the point here.
I thought you might be interested in some of the judge’s remarks during the argument. On the issue of whether Congress had the power to legislate this mandate under the interstate commerce clause, the court said,
It would be a giant leap for the Supreme Court to say that a decision to buy or not to buy is tantamount to activity…
Certainly the federal government can regulate when someone decides to engage in interstate commerce, but it seems that the judge has a problem with calling the simple decision of whether or not to engage in interstate commerce “an activity”.
An even more interesting discussion happened when the federal government’s attorney argued that the uninsured don’t pay for their health care, so that cost is spread among those who are insured. Thus, requiring everyone to have insurance solves this problem. The judge took issue with this by explaining that,
he was uninsured in law school when his son was born, and joked that the delivery bill came to about $100 per pound. “I paid it,” [said the judge].
Ouch, be careful you know the judge’s background before you advance an argument.
And, when Florida’s attorney argued that if it was constitutional for the federal government to require that all buy insurance, what else could they do, the judge said,
[i]f they decide that everyone needs to eat broccoli,” then the commerce clause could allow Congress to require everyone to buy a certain quantity of broccoli…
A decision is expected early next year.
What will be very interesting, though, is how the court deals with the severability issue. Absent the individual mandate, Obamacare will mean the death of private insurance on a much faster pace than will otherwise most assuredly occur.
Today United States District Court Judge Henry Hudson from the Eastern District of Virginia issued his ruling in Virginia’s challenge to Obamacare. He found that the provision requiring all to purchase insurance or pay a penalty (Section 1501) was unconstitutional.
UPDATE: Highlights of Judge Hudson’s opinion now up.
UPDATE 2: Below the fold we have added video of Virginia Attorney General Ken Cuccinelli who states the Obamacare legislation is critical to maintaining some semblance of personal freedom in America. It’s a good listen. Read more
I wish that were the worst thing she had to say but it isn’t. How about …. these people actually believe in things like the 10th amendment, “Oy”. Ummm that wasn’t me with the oy, that was part of her quote. Entry question: Is she the only one in Congress who thinks like this? Read more
No that’s not me saying that, that’s California Congressman Peter Stark. Listen to his latest town hall meeting. Read more
Last November I did a post on the differing legal justifications advanced by the Democrats in support of the mandate that everyone must buy insurance or pay a penalty. Steny Hoyer (D. Md.) insisted it was the power to tax, whereas Nancy Pelosi (D. Ca.) insisted it was the power to regulate interstate commerce. And, as we now know, Congress decided to side with Ms. Pelosi by devoting 3 pages of the bill explaining that the mandate was constitutional based upon it’s interstate commerce powers. At the time, I opined that although I didn’t agree with either position, I felt that the power to tax was the stronger argument. But, Congress didn’t consult with me.
It now appears that they should have.
There is a marvelous piece in today’s Wall Street Journal written by Randy Barnett, a Constitutional law professor at Georgetown, that explains that Obamacare supporters are now having a change of heart.
On March 21, the same day the House approved the Senate version of the legislation, the staff of the Joint Committee on Taxation released a 157-page “technical explanation” of the bill. The word “commerce” appeared nowhere. Instead, the personal mandate is dubbed an “Excise Tax on Individuals Without Essential Health Benefits Coverage.”
But, as Professor Barnett points out,
This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate’s constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.
So why is this so significant, you ask? Professor Barnett supplies the answer.
Never before has the [Supreme] Court looked behind Congress’s unconstitutional assertion of its commerce power to see if a measure could have been justified as a tax.
In other words, the Supreme Court doesn’t scour the Constitution looking for a clause that could make a law constitutional. The Justices look solely to what Congress has written.