Unconstitutional: The American people had their say, but now the Constitution is weighing in on ObamaCare's individual mandate.
December 14, 2010
By Robert Romano
"The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers," wrote Federal District Judge Henry Hudson in his decision invalidating the individual mandate to purchase health insurance imposed by ObamaCare.
Such a declaration should shock regular Americans who respect the boundaries imposed by constitutional, limited government. Even more so because Judge Hudson is writing about what the now-enacted ObamaCare law does.
Hudson's critique is a bold recognition of what the individual mandate really does — and just how unfounded it really is in our history. As Hudson articulated, the mandate "forges new ground and extends the Commerce Clause powers beyond its current high water mark." In other words, forcing individuals to purchase health insurance goes above and beyond anything Congress has attempted before under the Constitution.
In fact, the Administration could not cite a single example where the federal government had ever forced individuals to purchase anything, let alone a court case that upheld such a law.
That should give readers an idea of just what Congress was busy plotting behind closed doors while a majority of Americans, including Speaker-elect John Boehner, were offering a resounding "Hell no!" against the enactment of ObamaCare.
Health and Human Services Secretary Kathleen Sebelius argued that the decision not to purchase health care, when taken collectively, substantially affects underwriting in the national insurance market. That affects interstate commerce, and thus can be regulated under the Constitution's Commerce Clause.
Put another way, Sebelius was essentially stating that because forcing everyone to buy health insurance would make health insurance more widely used, affecting commerce in a manner the government deems desirable, it is constitutional. Sure. So would any mandate to purchase goods and services — ranging from cars to houses — have the impact of increasing economic output in those sectors the government prefers. But that does not make such mandates constitutional.
If that were true, there would be nothing that Congress could not compel the purchase of. The question, of course, is not whether government thinks the mandates to purchase goods and services are a good idea, but whether it has the power in the first place to regulate a non-activity. After all, commerce is an act that first and foremost, requires activity. And it requires choice. Deciding not to purchase something, in this case not to buy health insurance, is a decision not to engage in commerce. It is passive.
Fortunately for the American people, Judge Hudson saw through the Administration's plot. "Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," Hudson wrote, adding, "In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I."
Moreover, because the mandate was not grounded in the lawful application of the Commerce Clause, it too could not be sustained under the Necessary and Proper Clause, as the Administration maintained. Because, Hudson writes, "This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power." So, the Administration's argument that the mandate was "necessary" to help finance the legislation could not be sustained, because the mandate itself is unconstitutional. It matters little if the government saw utility in the provision.
Then, the question turned to whether the fine applied to individuals that failed to buy insurance was a penalty, or as the Administration attempted to argue, a tax that would fall under the Congress' constitutional taxing power. Except, under the law, it was explicitly defined as a "penalty." It was only after adoption when the Administration saw the legal flaw of the penalty that it decided to call it a "tax."
Hudson wrote, "The use of the term 'tax' appears to be a tactic to achieve enlarged regulatory license," calling the post-hoc rationalization for the provision nothing more than a "transparent afterthought."
Overall, Hudson's decision, and the courage of Virginia Attorney General Ken Cuccinelli and others to fight this battle, have given the American people a chance — perhaps a last chance — to turn back the gross expansion of federal power under the Commerce Clause.
Americans for Limited Government President Bill Wilson called the mandate a "mutation and destruction of the Constitution premised on the Administration's flexible understanding of the Commerce Clause."
"One of the outcomes of ObamaCare may be that the Supreme Court strikes down the most expansive reading of the Commerce Clause ever. If so, that may be the only positive that comes out of this dark chapter in American history," Wilson said.
Wilson added that should the Supreme Court overturn ObamaCare because of the individual mandate, "the decision will be of lasting importance, and could mark a turning point in rolling back the vast powers the federal government has assumed for itself under the guise of the legitimate exercise of the Commerce Clause."
That, indeed, would be positive, but it should never have gotten this far. After all, the Supreme Court is still just one decision away from, in Hudson's words, "invit[ing] [the] unbridled exercise of federal police powers" if it rules to uphold the mandate. It is still up to Congress to work to repeal ObamaCare, which has turned out to be the unconstitutional abomination opponents warned of from the get go.
Robert Romano is the Senior Editor of Americans for Limited Government.
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No Labels: The Fiction and Myth Behind the "Radical Center" Organization
By Adam Bitely
"No Labels" launched on Monday morning with a conference in New York City featuring a "who's who" of failed closet-liberal politicians attempting to create a fabricated movement in an attempt to make their agenda relevant. The "No Labels" agenda — which appears to be to campaign that voters are irrational for not electing Big Government politicians — has already failed to gain traction amongst the electorate around the nation. The election results on November 2nd, 2010 indicate just that.
The "No Labels" roll out featured politician has-beens such as Rep. Mike Castle (R-DE), Senator Evan Bayh (D-IN), Rep. Bob Inglis (D-SC), former Rep. Tom Davis (R-VA), and exiting Governor Charlie Crist (I-FL). All of these politicians have been tossed out by the electorate or read polling data that indicated they were rather unpopular in their districts or state and decided to save themselves from the embarrassment of losing at the voting booth. Mike Castle specifically, who lost his bid for the GOP nomination for the U.S. Senate in Delaware this past September, indicated that the voters in his state were irrational to go against his support of Big Government projects like Obama's "stimulus" and the bailouts.
The politicians at the "No Labels" launch spoke much too frequently about "hyper partisanship" that is spiraling out of control while failing to acknowledge that it is they that have led to the problem that they plan to tackle. The nation is too divided they argue, and "No Labels" will allow the "radical center" to have a voice at the table of government.
The folks behind "No Labels" must have missed the fact that a solid majority of independent voters sided with tea party movement influenced candidates in November that promised to put an end to the political establishment that runs the government. Independent voters rejected the politicians that are the very symbol of the Washington political establishment that "No Labels" is comprised of.
While the use of the words "hyper partisanship" (it felt like every speaker mentioned this at least three times a minute) and "starting the conversation" ran wild throughout the "No Labels" launch conference, fiction and myth ran even wilder.
For instance, one of the speakers in the evening program at the "No Labels" launch referenced a "hyper partisan gridlock" that is allegedly out of control in D.C. This person was obviously asleep for the past two years while Democrats ran Congress with solid majorities while simultaneously controlling the White House. No such gridlock existed. But don't expect the folks at "No Labels" to correct the record.
Further, the politicians that were showcased throughout the event have been running the government in DC that they were critical of throughout the event. These politicians are the problem, and definitely are not the solution.
At one point, New York City Mayor Michael Bloomberg criticized the Founding Fathers for being wealthy landowners while attempting to make a point that there is a severe problem that only the wealthy have access to government power. Mayor Bloomberg must have forgotten the size of his own bank account, being a billionaire and the wealthiest politician in America. He must have also forgotten that he had the law changed that would have prevented him from running for a third term, which would have allowed a new, fresh voice to run the city.
While it is nice to think that politicians will come together in Washington to fix America's problems while setting aside political differences, it is naïve to believe that "No Labels" will achieve any meaningful successes. If the establishment politicians that pranced around the "No Labels" conference were truly serious, they could show us by first removing any party labels they use and then actually focus on getting the nation back in fiscal order.
Such organizations like "No Labels" are just another tool in the D.C. political establishment's shed of political tactics used to deceive voters in to believing the myth that they are doing the work of the people. The politicians behind "No Labels" are the same politicians that have run the nation into the ground.
If Americans fall for this front group, the nation will be in serious trouble.
Adam Bitely is the Editor-in-Chief of NetRightDaily.com.
Video: A Look at the Week Ahead
Video by Frank McCaffrey
Part 1: http://www.youtube.com/watch?v=hrV3Z2CEnbA
Part 2: http://www.youtube.com/watch?v=335_edJwh9k
ALG Editor's Note: In the following featured oped from the Hill, Virginia local tea party leader Mark Lloyd praises the GOP steering committee for including some freshmen Congressmen on key House committees:
Boehner passes inclusion test
By Mark Kevin Lloyd
Most Americans anticipate this time of year to be the season of gift-giving and celebration. Some actually give thanks at Thanksgiving, look forward to giving and receiving gifts for Christmas and Hanukkah, and then resolve to do better next year. It looks like the leadership and the Steering Committee of the incoming 112th Congress is making some efforts to get into the spirit of the season.
The American people did not wake up to the sound of tiny hooves on the roof this season, they were awakened by the deafening sounds of jackhammers chipping away franticly at the foundation of our Republic, the crash of the wrecking ball bashing into the load bearing structures of our economy, and the huge regulatory earth movers burying them in red tape. Jarred from their slumber, they took to the streets and polls in great numbers with panic driven enthusiasm, and swore out a restraining order against the democrat crew they mistakenly hired to do some home improvement and renovation projects.
However, the democrat demolition crew, as expected, does not want to leave the job unfinished so rather than listen to and abide by the wishes of their employer and "just stop" they start working overtime. No surprise. They have taken pride in their work and they have a reputation to uphold. Evidently there was a misunderstanding with the original contract. It appears the contract did not adequately define renovation, improvement, and fundamental change. Did anyone read the fine print? You know, that pesky old Constitution.
The American people hired a new crew to clean up the mess and restore our home using the original blue-prints. The incoming freshman class spent many months being instructed by their constituents as to what is expected of them. Some of the instruction was difficult and even painful for them to learn. But, they understand the new contract and expectations far better than those who had been working alongside the democrat demolition crew for years.
"Yes, Virginia, there is a Santa Claus." I think. The House leadership and steering committee did respond to some of the wishes being screamed at them to put these incoming freshman on the important committees to relay to the more senior members the true wishes of the constituents who worked so hard to put them in office. In Virginia's 5th and 9th districts the Tea Party and other grassroots conservatives put to the streets, the phones, and computer keyboards to replace incumbent democrats. One entrenched veteran, and the other an Oval Office pet. Their tireless efforts overcame the millions of dollars being poured into these districts by the DNC, DCCC, unions, leftist 527's, and the other less noticeable, although predictable, dirty democrat dealings. These freshman know our voice and our wishes. We hope the leadership will not ignore them, and we will support them so long as they don't allow themselves to fall into the inside-the-beltway swamp.
Robert Hurt (R-VA5) and Morgan Griffith (R-VA9) were two of the eleven named to top tier committees, Financial Services and Energy and Commerce respectively. Congratulations to them, and a hat tip to House leadership and Steering Committee from the grassroots conservatives and Tea Party in Virginia.
Not every gift wish is satisfied. More often than not there is always a lump of coal or bundle of sticks hidden someplace. What was the House leadership thinking when it appointed Fred Utpon, "the lightbulb bandit" to head the Energy and Commerce Committee? Morgan Griffith has his work cut out for him. Also, what were they thinking when they chose the "Prince of Pork" Hal Rogers to run the House Appropriation Committee?
This season is supposed to be a season of hope, real hope, not the other type that fooled so many people. The only hope we have to save our Republic is for the American people to stay vigilant and engaged. The gifts of freedom and liberty are not gifts we keep, they are gifts we protect and pass along to future generations. Our history shows that to preserve these gifts we must dedicate our time, our talents, and in some instances our lives and fortunes.
Mark Kevin Lloyd is chairman of the Lynchburg Tea Party. He is also the newly elected chairman of the Virginia Tea Party Patriot Federation (VTPP)