To Hell with the Constitution?

To Hell with the Constitution?

By Jon N. Hall

Much has been made recently of the unconstitutionality of federal
health care reform, especially a government-run system (the "public
option") that could devolve into a "single-payer" system. The main
objection is that the federal government has no authority to operate a
health care system. Indeed, the 9th and 10th Amendments forbid it,
according to Larrey Anderson of American Thinker.


In The Wall Street Journal, Judge Andrew Napolitano writes that
Congress has been getting around such constitutional bans by invoking
its Commerce Clause, "the favorite hook on which Congress hangs its
hat in order to justify the regulation of anything it wants to
control." Perhaps the most outrageous abuse of this tiny clause is the
case of Wickard v. Filburn (1942), where the Supreme Court cited the
Commerce Clause in denying a man the right to cultivate his own land
for the purpose of feeding his family.


Judge Napolitano deems ObamaCare "unconstitutional at its core".


Besides the systemic ban, a key component of ObamaCare may also run
afoul of the Constitution. The "individual mandate" for citizens to
buy health insurance seems to violate the 14th Amendment's Equal
Protection Clause. In The Washington Post, attorneys David Rivkin and
Lee Casey assert:
The otherwise uninsured would be required to buy coverage...for no
other reason than that people without health insurance exist. The
federal government does not have the power to regulate Americans
simply because they are there.
During last year's campaign, I made this "existential" argument
myself, comparing the "individual mandate" to poll taxes. In Harper v.
Virginia Bd. of Elections (1966), which struck down poll taxes in
Virginia, Justice Douglas delivered the Court's opinion:
Long ago in Yick Wo v. Hopkins ... the Court referred to "the
political franchise of voting" as a "fundamental political right,
because preservative of all rights." ... fee paying has, in our view,
no relation to voting qualifications; the right to vote is too
precious, too fundamental to be so burdened or conditioned.
Is not the right to exist even more "fundamental" than the right to
vote? Isn't existence a precondition of "all rights"? Yet this is what
the "individual mandate" taxes: existence. In the Wall Street Journal,
Rivkin and Casey write:
But if over time, as many critics fear, a "public option" health
insurance plan turns into what amounts to a single-payer system, the
constitutional issues regarding treatment and reimbursement decisions
will be manifold...The only thing that is certain today is that the
courts, and not Congress, will have the last word.
In her coverage of the November 5 rally on Capitol Hill and attorney
Mark Levin's impassioned speech to the assembled throng (great video
of it in the link), Penny Starr reports:
Both the House and Senate versions of the health-care reform bill
would force all individuals who are citizens or legal residents of the
United States to buy health insurance or else pay a fine, even though
the Congressional Budget Office has reported that the federal
government has never before required Americans to buy any good or
service. Sen. Orrin Hatch (R.-Utah), a longtime member of the Senate
Judiciary Committee, told CNSNews.com recently that this mandate is
not constitutionally justifiable and that if Congress can force
Americans to buy health insurance "then there's literally nothing the
federal government can't force us to do" [emphasis added].
America once made the required nod to the Constitution. When We the
People wanted to make some fundamental change or expand the federal
government's reach, we did the right thing and amended the
Constitution.


The Constitution has 27 amendments, and 12 of those amendments came
within the last century. One of those 12 amendments (#18) was repealed
by a later amendment (#21). If we once thought that we had to amend
the Constitution to ban "intoxicating liquors" and later had to again
amend the Constitution to re-legalize the stuff, wouldn't we need an
amendment to allow the government to intrude even more intimately into
our lives?


But the amendment process is arduous (the 27th Amendment took 203
years to ratify). And there's no guarantee the states will go along
(the Equal Rights Amendment failed). So Congress goes its merry way,
the Constitution be damned.


But now Congress is ramming through their abortion of a bill by the
thinnest of majorities. The House just passed its version 220 to 215
-- a 3-vote margin to pass the "mother of all entitlements." The
Senate is considering its options, among them the "nuclear
option" (called "reconciliation"), which would allow them to get
around a filibuster.


If Congress were to do the right thing and initiate an amendment to
enshrine the "individual mandate" in the Constitution...it would fail
miserably. If America is still America, Americans will not tolerate
being told they have to buy something, especially if it's for no other
reason than that they exist. If ObamaCare becomes law, folks will drop
their insurance out of principle. They'll file suits against the feds.
The states will resist, perhaps rebel. And great will be the tumult
thereof.


I'm afraid Congress has not only misread the Constitution, but they've
also misjudged the American people. Or maybe they just don't know what
country they live in.


Jon N. Hall is a programmer/analyst from Kansas City.
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Relevant Pages

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