Why Obamacare cannot possibly be constitutional…
Many astute observers note that the roots of Obamacare, and many other things we Americans now take for granted as being under purview of the Commerce Clause, lies in the (1942) Wickard V. Filburn ruling that 1964 GOP presidential candidate Barry Goldwater tarred and feathered in his tome The Conscience of a Conservative.
Constitutional analyst and syndicated radio talk show host Mark Levin briefly discusses this issue here:
Some deeper analysis is found here:
Indeed, the misuse of the General Welfare Clause along with the aforementioned more pertinent one, has led to monstrous abuse of the citizenry defended by the usual suspects like former House speaker Nancy Pelosi, who look at those questioning where the authority exists to implement national health care generally, and a punitive mandate specifically, as being out of their minds. We are already at the point where such public figures mock those dissenting.
As the Republican party’s most famous Libertarian figure notes in his book, “No power over agriculture was given to any branch of the national government” but that did not stop Roosevelt and his goons from trying their level best to do so.
After the infamous “court packing” scandal, FDR’s defeat in the sphere of public opinion over shaping the nation’s highest chamber soon led to a high court that gave him most of what he wanted anyway, by their own volition. One of the most important rulings won for unlimited government was the 1942 case which laid the groundwork for Obama’s monstrosity.
Writes the now deceased former Arizona Senator of the historically infamous SCOTUS case:
“a farmer had been fined for planting 23 acres of wheat, instead of the eleven acres the government had allotted him—notwithstanding that the “excess” wheat had been consumed on his own farm. Now how in the world, the farmer wanted to know, can it be said that the wheat I feed my own stock is in interstate commerce? That’s easy, the Court said. If you had not used your own wheat for feed, you might have bought feed from someone else, and that purchase might have affected the price of wheat that was transported in interstate commerce! By this bizarre reasoning the Court made the commerce clause as wide as the world and nullified the Constitution’s clear reservation to the States of jurisdiction over agriculture.”
With Obamacare, the state has gone beyond even the above absurd level of Living Constitution trickery by essentially saying that:
One must directly participate in a *specific* area of commerce by BUYING a product or service or face punitive fines or prison.
A choice to not participate, or in this case to not buy health insurance is denied with the individual mandate portion of the Affordable Care Act. In effect, the government is regulating your choice to purchase a plan for coverage (or not) by arguing you must use your money to do so, with no option of being left alone existing.
Allowing the government the authority to seemingly stretch the Commerce Clause beyond recognition is frequently justified by legal scholars, who argue a long string of high court precedents provides a “rational basis” to regulate broadly if it can be shown to “substantially affect” interstate trade.
Supporters attempt to claim a parallel with auto insurance, which skeptics argue is absurd since in that case, a person is consciously acquiring a potentially big liability by owning/operating a vehicle that might cause harm to bystanders. They can *choose* to take the bus, and not drive, etc.
But big government types hit back and say that that the parallel is even more relevant in the case of health insurance, particularly of the catastrophic coverage sector, since you never know when you might need it and will force taxpayers to cover you when you use an emergency room. They are required to treat you, whether or not you can pay. Thus, they argue, as a condition of breathing, you must have insurance, you must agree to pay your own way, you must buy coverage, on the assumption that some day you will likely use it, thereby saving the government from footing the bill.
Clearly, the problem is more one of the laws requiring treatment than proof of mandate soundness. Why not change those which can be selectively applied rather than giving the government the power to compel purchases universally? At any rate, many will not burden the taxpayer, because they will pay their own way with cash or will suffer a death not involving emergency medical care via accident, murder or cerebral hemorrhage, etc. The breathing argument fails.
The high costs of health care are agreed by all. The problem comes in how to tackle that.
Liberals argue for the government to adopt a gigantic role, as though past history shows that controlling costs will NOT be achieved by such a course. All one has to do is look at past intrusions in this area where costs have skyrocketed, when arguments originally were made claiming such involvement would lower them, which they did not. Medicare consumes 13% of the total budget.
It makes a lot more sense to push for free market solutions, with catastrophic coverage and an emphasis on not using serious medical care excessively. One problem that needs to addressed that is not politically correct is the possible high rates of usage of the ER by illegals who do not want to be identified and cannot afford regular care or insurance plans which prompts them to seek trauma units for non-life threatening conditions on a regular basis. This drives up costs.
As an aside, I just heard the health care bill provides a mandate exemption for illegal immigrants. How charming. Are these not the very folks most invisible to the law in terms of getting paid for services used? And heavy users? The Amish I hear are exempt, on religious conscience, but not Catholics. Too many of them it appears exist to permit that one.
Tort reform may be an issue as well, though that is debatable. It’s also true that testing procedures used to identify causes of medical conditions of varying degrees can be redundant, driving up costs involved. Perhaps hospitals feel they are able to hit the government for some of those fees, so they secretly like the overkill to be able to milk the system over.
Loosening laws and regulations pertaining to the purchase of health insurance across state lines would be a start. Private health savings accounts come to mind. Catastrophe plans for emergency use only are another idea. We do know that competition tends to drive costs down. Consider that in the 1950′s the cost of a single stock market transaction commission fee was like 100+ bucks, and when day trading firms sprung up over years into the 1990′s costs per trade plummeted, because everyone could fund an E-Trade account. Now with firms like Interactive Brokers, it’s 1 buck.
We can argue about how to best control medical treatment and insurance costs, but I submit that a law like Obamacare is not constitutional and is thus off the table as an option altogether.
I believe the heart of the matter as to why Obamacare is unconstitutional stems from a key point missed by many:
Once the government has the power to mandate your purchases, any pretense of them not controlling your entire life effectively is gone. The reason is simple. If they can make you buy this, they can use similarly contorted arguments to make you buy gym memberships, since as Michelle Obama likes to say, Americans are unhealthy and need to reform.
And while we are at it, why not demand exercise bikes, weekly broccoli, and so forth? Your bad health could become a drain on the system, and thus taxpayers, so we cannot allow that to happen. We must protect you from yourself.
Actually, they can make you purchase almost anything.
And therein lies the rub.
You see, once the government can mandate your purchases, the game is up. That’s because since they, through their regulatory power and authority to penalize the producers of those products and services as a requirement of their doing business, can considerably affect the cost to buy said products/services that you the citizen are mandated to purchase.
Most folks do not hate “Big Oil and Gas” as reflexively once they learn of how their bottom line is affected by government regulations that dip mightily into their profits before they ever see a thin dime, which in turn drives up the costs to the product buyers. They have to pass it on, thus raising prices, in order to be profitable after all their hidden costs are factored in.
A similar situation exists or more importantly can be MADE TO EXIST for the purposes of control by the state for men seeking to have or extend greater control over other men they rule from the perch of public life.
Turning our attention now away from the health care law and to a hypothetical other mandate they could concoct:
Suppose that through their regulatory schemes, the feds make the cost sky high of purchasing a gym membership or other health and fitness or nutritional materials that they mandate you buy to avoid being a drain on the system due to your addiction to junk food, which in turn leads you to be unable to pay for them?
What happens then?
Since you must comply with the law, you now face incarceration or heavy fines, simply by being unable to pay.
Now the state owns you and your future. They can, coupled with a mandate to buy what is an incredibly expensive item or service, create the conditions (high costs and forced purchasing) that lead to a no win affair for you and then blame you for it, applying stiff penalties.
Critics hit back on this with regard to Obamacare, claiming an exemption exists for truly low income individuals which is remedied by having the state pick up the bill. The government does not want everyone in jail for non-compliance, this kind of talk is absurd and conspiratorial, they say. People living below the poverty line have nothing to fear, they say.
Well, therein lies another ultimate rub. There may be such an exemption in Obamacare, and you can read the entire 2,074 pages to find out, but the point is the remedy probably forces you into their clutches in return for such help to solve a problem they created to avoid punishments they devised. And such exemptions may not exist in future mandates as in our gym membership example, or they may have significant strings attached.
In return for your claim of financial hardship exemption, you will probably be pushed into a government run health care scheme. This way, eventually ALL private insurers will be phased out or will be unable to compete and will have to close up shop. They will become irrelevant, and government the only game in town to decide whether you live or die, and when. Death panels, they’re not just for Sarah Palin’s breakfast anymore.
And that WAS the point all along, which was:
To nationalize the insurance and health care market and to bring everyone under state care, and that includes all Americans who can afford to buy private coverage. It’s the ultimate form of incremental-ism. Nobody will escape.
Once you have everyone on the government dole, they own you.
Hence, Obamacare cannot possibly be constitutional…