Even if you agree that Congress should have the right to order a citizen to purchase health care insurance on the basis of the commerce clause of the U.S. Constitution, you need to consider how this will expand the powers of the federal government to mandate other actions that you, your children and future generations may have to comply with.  Consider a party in power that disagrees with your ideology and imposes mandates on you to take actions opposite of your beliefs.  Can you visualize how allowing this mandate to stand is simply an abdication of individual liberty?

As the 4^th District Court of Appeals deliberates the issue as the next step in a journey that both sides agree will end up at the Supreme Court, we are reminded that part of the genius of our Constitution is in how it defined a government of enumerated powers.  Those powers, specifically granted to the government by the people, clearly subjugate the government to the people regardless of the political agenda of those in power at any point in time.  Previous interpretations of the commerce clause, and the general welfare clause, broadened the powers of the federal government but only to increase the reach of its power to tax.  While those interpretations are still discussed in some circles, the mandate for a citizen who chooses not to participate in commerce to purchase a service to benefit commerce is a significant increase in the power of the federal government.  It will reverse the balance of power in favor of the federal government, subjugating the people to the will of the particular party in power at any given time.

This slope is indeed a slippery one.  If a party comes to power and passes legislation to mandate citizens to pursue education and careers based on the overall benefit to the nation’s commerce, rather than individual choice, it will be able to have that legislation upheld based on the precedent this current mandate will establish.  It will be argued that if the nation needs engineers and chemists, citizens should be tested and those with aptitudes in those disciplines should be mandated to direct their lives accordingly.  The argument will be strengthened by suggesting that these citizens are going to pursue careers anyway and the nation’s commerce would be benefited by mandating the direction of their careers.  If citizens fail to comply, the government would impose financial penalties.

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What does the Constitution really say about the most controversial policy decisions of the present day?  What arguments against Obamacare have potential in court, and which are DOA?

Constitutional law experts Richard Epstein and John Yoo joined us  to discuss these very issues.  They examine the constitutionality of Obacamare through the lens of the “encroachment” argument (which has potential) and the “general welfare” argument, which they argue won’t work.

We also discuss CA’s Prop 8 and Judge Walker’s ruling that it violates the equal protection and due process laws in the Constitution. Yoo argues that the “right to gay marriage” is a new and invented right, and that while he is okay with gay marriage as a policy matter, a judicially imposed rule that overturns the majority of voters isn’t the way to get it done.  Instead, Judge Walker essentially says that the majority of Californians are bigots .

Epstein and Yoo provide predictions for Supreme Court decisions, reflect on Bush v. Gore (ten years later!), and discuss the Supreme Court under John Roberts.

Here is the full episode:

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From Reuters:

A judge in Florida on Monday became the second judge to declare President Barack Obama’s healthcare reform law unconstitutional, in the biggest legal challenge yet to federal authority to enact the law.

U.S. District Judge Roger Vinson, appointed to the bench by President Ronald Reagan in 1983, ruled that the reform law’s so-called “individual mandate” went too far in requiring that Americans start buying health insurance in 2014 or pay a penalty.

“Because the individual mandate is unconstitutional and not severable, the entire act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications,” Vinson wrote.

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Judge Henry Hudson’s recent decision in Virginia v. Sebelius rejected the notion that Obamacare’s individual mandate is constitutionally justified as either a regulation of interstate commerce or a tax for the general welfare.

First we will examine the individual mandate as a regulation of interstate commerce, but some basic background of Commerce Clause jurisprudence is in order.  In Perez v. United States (1971), the Supreme Court outlined three kinds of commerce for which Congress could regulate: (1) channels, (2) instrumentalities, and (3) activities which substantially affect interstate commerce.  If you have not seen these terms within the confines of the Constitution it is because they do not appear.  However, this understanding of the commerce clause has been drilled into the minds of attorneys for the last 40 years.  Frankly, Commerce Clause jurisprudence needs a re-examination, regardless of the health care issue.

A century of questionable precedents guides the courts.  One of the most egregious examples of government overreach occurred in Wickard v. Filburn (1942).  A farmer that grew more than his government mandated allotment of wheat, for personal use, was deemed to have substantially affected interstate commerce.  Interestingly, a similar case came up in 2005 involving (pay attention liberals) cultivation of marijuana for personal use in California, and in compliance with state law.  In Gonzalez v. Raich (2005), Justice Clarence Thomas dissented from an opinion confirming the federal government’s regulatory power over personal cultivation and use (yes, you read that correctly).  He rather presciently penned this statement:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers.

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From the Associated Press:

A federal judge declared the Obama administration’s health care law unconstitutional Monday, siding with Virginia’s attorney general in a dispute that both sides agree will ultimately be decided by the U.S. Supreme Court.

U.S. District Judge Henry E. Hudson is the first federal judge to strike down the law, which has been upheld by two others in Virginia and Michigan. Several other lawsuits have been dismissed and others are pending, including one filed by 20 other states in Florida.

Virginia Republican Attorney General Kenneth Cuccinelli filed a separate lawsuit in defense of a new state law that prohibits the government from forcing state residents to buy health insurance. However, the key issue was his claim that the federal law’s requirement that citizens buy health insurance or pay a penalty is unconstitutional.

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This year marks the centennial of the Mann “White Slave Act,” when Congress made it a federal offence to transport a woman across state lines for “immoral purposes.” Though the act is still on the books (as former New York Governor Eliot Spitzer can tell you), and has been made gender-neutral, it is usually seen as a relic of nineteenth-century moralism. In fact, no act did more to overturn the nineteenth-century constitutional order. The Mann Act was boldly challenged the idea that the Constitution limited Congress’ power the ends enumerated in Article One, section eight. It established an all-purpose federal “police power” that now permits Congress to regulate just about everything.

By 1910, Congress had already taken some steps toward the establishment of a police power—outlawing, for example, the interstate shipment of lottery tickets and of impure food and drugs. The U.S. had recently ratified a multinational treaty to stamp out the international trafficking in prostitutes. The act’s proponents emphasized that it was an attack on the big business of “commercialized vice.” The press and U.S. officials, particularly U.S. Attorney Edwin Sims in Chicago, claimed that a vast “white slave trust” was operating in the country, when in fact there was little coerced prostitution at all.

The bill raised constitutional objections in the House, often from states-rights advocates. But prostitution was so universally reviled that most overcame their constitutional scruples. Rep. William Cox of Indiana had doubts as to the bill’s constitutionality, but said that he “would unhesitatingly resolve that doubt in favor of its constitutionality on account of the enormity of the crime sought to be stopped and the evil intended to be remedied…. Who can be hurt by its provisions? None but the guilty.” The bill’s sponsor, Illinois Republican James R. Mann, claimed that the white-slave traffic, “while not so extensive, is much more horrible than any black-slave traffic ever was.” New York Representative William Sulzer denounced the “quibbling in regard to the constitutionality of the provisions of this bill. In this frightful matter I shall not allow technicalities to cloud my sense of immediate duty.” In an ominous sign of Congress’ progressive abdication of its constitutional duty, he said, “The courts must take the responsibility for its constitutionality.”

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Sometimes you hate being right.

In chapter 4 of our book, The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, we make the point that Team Obama would try to pull a fast one when it comes to Obamacare’s individual mandate that everyone reading this blog post needs to buy health insurance, or be subject to a penalty payable to your good friends at the IRS.

We first made this argument in a column we coauthored with Senator Orrin Hatch in the Wall Street Journal back in January. Now this issue has suddenly exploded back into the news.

For months, Team Obama has been saying that the individual mandate is authorized by Congress’ power to regulate interstate commerce found in the Commerce Clause. We explain in the book why that argument is a loser in court, and that the White House would have to pull a bait-and-switch and suddenly argue that the mandate is a tax (violating Obama’s promise not to raise taxes on anyone making less than $250K per year).

Looks like we were right. In their first filing against the multi-state lawsuit challenging Obamacare, Team Obama is now arguing that the individual mandate is… a tax.

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The United States never was intended to be a democracy, but rather a compound republic delegating clearly enumerated powers to the federal government and creating a masterfully designed system of checks and balances amongst its three branches meant to limit Washington’s intrusions on the sovereignties of the several states and the liberties of their peoples.

As attentive students of the New Deal know, however, any brake that the federal judiciary might think of applying to the expansion of the central government’s powers was undermined by FDR’s proposal to “pack” the Supreme Court after his landslide reelection to the White House in 1936. Although it failed to become law, the court-packing plan nevertheless soon was followed by the famous “switch in time that saved nine”, thereby ushering in a period of judicial deference to the executive and legislative branches that fulfilled the president’s intent, namely securing a working majority of justices willing to clear the path of constitutional objections to the Social Security Act, the Wagner Labor Relations Act, minimum wages and other legislative monuments to his “progressive” agenda. More than any other consequence of FDR’s politically-motivated meddling, the Commerce Clause thereafter became a dead letter, as Ms. Kagan candidly admitted during her recent confirmation hearings.

Mr. Obama apparently has as little respect for the third branch of government as FDR had. Twice rebuffed in tests of the moratorium he imposed on offshore deepwater drilling by the federal courts, issued by executive order on May 27, the president responded by ordering a new ban on exploratory drilling in waters deeper than 500 feet, effective until November 30.

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Repealing Obamacare via Article V is a means of last resort, or rather a threat to the national bureaucratic government should those in Washington not jump on board.  In the meantime, states, those individual laboratories of liberty, are attempting a number of remedies.

States have filed lawsuits, but my legal background makes me wary of relying on the judicial branch to make the ultimate decisions on policy.  Marbury v. Madison established the Supreme Court’s role as the ultimate arbiter in conflicts involving the Constitution, but that does not guarantee that correct decisions will result.  So first we will examine the legislative solutions.

Many states across the country are either introducing laws or revising constitutions to protect Americans from the tyranny of Obamacare.  The progress of these Health Care Freedom Acts or Amendments are being tracked by various groups.  Most of this legislation is fairly simple to read and understand.  Basically, states are refusing to enforce or enact Obamacare, which is perfectly reasonable under the present legal understanding of federalism.  The national government cannot force states to enforce unfunded federal law.  A perfect example of this is the increasing decriminalization of marijuana in communities across America.  Local police are handing out tickets (much better for revenue than throwing people in jail). (more…)

President Obama, Senator Reid, and Speaker Pelosi showed their ability to ruthlessly ram through their legislative agenda with a combination of procedural tricks, sleight-of-hand, and painful arm-twisting, all of which could happen again. They also hope to have a Supreme Court which will rubber-stamp their legislative agenda and thus guarantee its long-term survival. If one agrees with Santayana’s “those who cannot remember the past are condemned to repeat it,” then it is instructive to examine the way that President Franklin Delano Roosevelt viciously attacked and tried to control the Supreme Court in order to secure his New Deal agenda.

In 1935 the Court struck down as unconstitutional certain parts of FDR’s New Deal. The essence of the Court’s common-sense reasoning was that Congress, the legislative branch, may not avoid its lawmaking responsibilities and punt them to the President, the executive branch. Moreover, the Court in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) further irked FDR because the Court held that FDR had to follow the law and could not arbitrarily fire a Federal Trade Commission commissioner, Mr. William Humphrey, a Republican whom FDR believed did not support the New Deal with sufficient enthusiasm.

FDR did not like that, because his New Deal depended on creating a massive federal regulatory bureaucracy within his executive branch control. So, on February 5, 1937, FDR announced his infamous “Court-Packing Plan,” directly attacked the Supreme Court, and planned to stuff the Court with his loyalist lackeys. FDR followed up with a March 9, 1937 Fireside Chat where he said that America needed his Court-Packing Plan and “must take action to save the Constitution from the Court, and the Court from itself.”

On March 29, 1937, the Supreme Court bowed to FDR’s unprecedented political attacks and decided three cases in favor of the New Deal. By 1941 the Supreme Court’s “Four Horsemen,” Justices Butler, McReynolds, Sutherland and Van Devanter, were gone, leaving no one who dared speak truth to power: that Congress cannot shirk its constitutional responsibilities and that the president must follow the law. Thus, the New Deal Juggernaut rolled full-steam ahead with no one left to protect the American people from the huge federal regulatory bureaucracy that still pervades every aspect of American life and even spawned a new area of law, Administrative Law.

Today there are and will be many legal challenges to the Obama-Pelosi agenda, including health-care, financial regulation, cap-and-trade, immigration, and whatever else lurks in their legislative pipeline.

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Mississippi State Senator Chris McDaniel and I have filed a class action lawsuit today, Good Friday 2010, challenging the constitutionality of the Patient Protection and Affordable Care Act, also known as “ObamaCare” and a variety of other less polite euphemisms.

We believe that the PPACA is DOA for several equally important reasons, but only one of which has received much attention. Most folks know by now that Congress has invoked the Commerce Clause to justify this massive expansion of governmental power. Our “Good Friday” Complaint spends many pages discussing how Congress has clearly exceeded the limits of its power under the Commerce Clause. I strongly urge you to read the entire Complaint. What I really want to point out, though, are some things you probably don’t know, and definitely will not like — even if you consider yourself a “Liberal.”

Consider for a moment that you have now been commanded to enter into a contract with an insurance corporation, whether you want to or not, whether you need to or not. Yes, there are many who actually choose to be uninsured. For most, it is simply an economic decision that often works out to the uninsured’s economic advantage. Not always, of course, but that’s the beauty of liberty — you get to make the decisions, and live with the good or bad that comes of them.

Now that you realize that a dictate has been handed down, compelling you to contract with an insurance corporation or else, consider what you have to do. It’s not like you can go to a vending machine, swipe your debit card and pull out a policy. You still have to apply. True, they cannot turn you down, but so what? You still have to give a big, scary, mean corporation a lot of private medical and psychological information about yourself and your family. Then, forever after, the insurance corporation’s bureaucrats will gather this private information without even bothering to let you know. As our Complaint states:

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The Senate is debating the future of American health care, yet one very important issue has yet to get a full and fair debate.  Is the individual mandate that forces citizens to purchase health care insurance a constitutional power of the federal government?  When House Speaker Nancy Pelosi (D-Ca.) was asked this question, she answered with the non sequitur “are you serious?”  Conservatives who respect the idea that the constitution maps out a federal government with limited powers would answer with a loud — “Hell No.”

The Heritage Foundation and the American Center for Law & Justice (ACLJ) recently released legal analysis calling into serious question the constitutionality of the Congress’s plan to force all citizens to purchase health insurance.  These conservative institutions argue that the unprecedented idea, a mandate that all Americans be forced into a contractual agreement with a private party for health insurance, is not a constitutionally permissible activity by the federal government.  My sources tell me that this issue will be raised during the Senate debate on ObamaCare very soon and may open another front in the war against ObamaCare.  (more…)