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Wednesday, August 17, 2011

Obamacare Is Going Down

As we saw, the 11th Circuit U.S. Court of Appeals became the first federal appellate court to find the Obamacare individual mandate unconstitutional last Friday. I filed briefs in that case on behalf of the American Civil Rights Union urging that result. More important than the ruling is what the trend is showing. For all that matters in the end is what five Justices on the Supreme Court say.

One of the two judges voting to strike down the Obamacare mandate is Frank Hull, a Clinton appointee. She now joins her 11th Circuit colleague Judge Joel Dubina, appointed by Bush I, District Court Judge Henry Hudson, appointed by Bush II, and District Court Judge Roger Vinson, appointed by Reagan, in producing thorough, compelling opinions all agreeing that the Obamacare mandate violates the Constitution.

Commerce Clause Abuse

The Congress only has the powers specifically enumerated and granted to it in the Constitution. One of those is in Article I, Section 8, Clause 3, the Commerce Clause, which grants Congress the power "To regulate commerce… among the several states."

As James Madison explained in The Federalist Papers, that power was granted in the Constitution because under the prior Articles of Confederation the various states started adopting protectionist measures against each other, disabling the national economy. Congress was actually granted the Commerce Clause power to put an end to this interstate protectionism and allow the emergence of a national economy, not primarily to grant Congress its own powers of interstate regulation (let alone the vast, unlimited powers claimed today). Madison wrote that the Commerce Clause "grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." (The Founder's Constitution, Vol. 2, Art. I, Section 8, Clause 3 (Commerce).)

But, of course, the clause was turned around long ago to justify federal regulation, now claimed by President Obama and the Democrats to do so without limit. The question presented in the Obamacare cases is whether there is still any limit.

In State of Florida v. Department of Health and Human Services last Friday, federal appellate Judges Hull and Dubina joined Judges Hudson and Vinson in saying there definitely is such a limit. Hull and Dubina wrote, "The Supreme Court has staunchly maintained that the commerce power contains outer limits which are necessary to preserve the federal-state balance in the Constitution." They explained:
The Supreme Court has placed two broad limitations on congressional power under the Commerce Clause. First, Congress's regulation must accommodate the Constitution's federalist structure and preserve "a distinction between what is truly national and what is truly local." Id. at 567–68, 115 S. Ct. at 1634. Second, the Court has repeatedly warned that courts may not interpret the Commerce Clause in a way that would grant to Congress a general police power.
The police power is general government power to regulate conduct and preserve public order in service to the general welfare, morals, health, and safety of citizens. This power is not delegated to the federal government under the Constitution, but is retained by the states, limited only by the Bill of Rights and the extent to which they apply to the states.

The Judges continued:
Properly formulated, we perceive the question before us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives. These types of purchasing decisions are legion. Every day, Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children's education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes.
Under this theory, because Americans have money to spend and must inevitably make decisions on where to spend it, the Commerce Clause gives Congress the power to direct and compel an individual's spending in order to further its overarching regulatory goals, such as reducing the number of uninsureds and the amount of uncompensated health care.
The Judges rejected such a reading of the Commerce Clause, saying "the Supreme Court has always described the commerce power as operating on already existing or ongoing activity." All prior cases "involved attempts by Congress to regulate preexisting, freely chosen classes of activities." Not buying health insurance is not an already existing or ongoing activity, or a preexisting class of activity, the Judges concluded.

The Judges found the government power exercised in the individual mandate to be so unprecedented that the government could not cite a single precedent upholding it, in their briefs or in oral argument. Nor could the Judges find one. Hull and Dubina wrote:
Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.

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