True constitutional conservatives don’t ask, “Does the Constitution keep me from doing X?”.  Instead, they examine whether the Constitution explicitly lays out that X is permitted.

On a recent Uncommon Knowledge, constitutional scholars Richard Epstein and John Yoo have a feisty conversation with Peter Robinson on the likelihood of the Supreme Court striking down Obamacare, its political implications, and the general rule of law in our country.

They ask whether an individual mandate is constitutional – can the government force citizens to purchase health insurance?   In other words, can the government compel people into the marketplace?  If so, what’s the stopping point?  Pretty soon they’ll be telling us what we can eat, what car we have to buy and that we need to exercise a certain number of minutes per week.  Where is the individual liberty in that?

Yoo and Epstein discuss the potential fallout from the decision, whether Romneycare is constitutional, and whether the Federal Government has the right to coerce states using grant money.  Outside of health care, they speculate on the 2012 court, censorship and the FCC.

Check out the full episode, here:

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Democrats already know one issue upon which they have potential GOP nominee, Mitt Romney at a severe disadvantage, as Paul Begala points out: RomneyCare versus ObamaCare.

After 19 debates Mitt still doesn’t have a straight answer. Rick Santorum skillfully dissected Romney on the topic. If Romney is the GOP nominee, you can be sure Barack Obama will do the same.

Appearing to have been stuck in, you’re angry mode, a tactic Romney is deploying to target Newt Gingrich, it was all he seemed to have as a fall back when very effectively pressed on the subject by Rick Santorum in last night’s debate.

“We cannot give the issue of healthcare away in this election,” Santorum declared, striking a resonance with conservatives everywhere.

Based upon various Twitter accounts, conservative radio host Rush Limbaugh picked up on the topic this morning, stressing the importance of the exchange between Santorum and Romney. Liberal blogs and outlets such as Talking Points Memo and the Huffington Post are picking up on it with video, as is The Hill, among others.

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Repeal and Replace. That was the common refrain when House Republicans actually repealed ObamaCare in their chamber a year ago. Of course, the Senate Democrats rejected the repeal. But now there is a chance- some would say even a strong chance- that ObamaCare will be declared unconstitutional by the Supreme Court before the election in November. If the high Court decides that the individual mandate, which forces individuals to purchase health insurance, is unconstitutional, and that President Obama’s signature legislation cannot go forward without that mandate, ObamaCare will stop dead in its tracks. Then what?

That’s where the Replace part comes in. Now, I won’t whine and complain about how things seem to take a long time to get done in Washington, but the replacement for ObamaCare should be on the assembly line, waiting to be packaged and sent to stores near all of us. We know the talking points that make good common sense: purchase health insurance across state lines, own our health insurance policies so they are portable, tort reform, free-market principles, etc. Of course, House Budget Chairman Paul Ryan (R-Wisconsin), the reliable person that he is, has thought through a great deal of this, and has based his conservative answer to health care reform on his Medicare reform proposal.

But, where are the details and how do we plug ObamaCare’s replacement into our lives if the law is declared unconstitutional?

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(Reuters) – Oral arguments on President Barack Obama’s sweeping U.S. healthcare overhaul will last 5-1/2 hours spread over three days from March 26-28, the Supreme Court said on Monday.

The Supreme Court last month agreed to hear the 5-1/2 hours of oral arguments, one of the lengthiest arguments in recent years. There have been similar marathon sessions in a handful of big cases dating back over the past 70 years.

The court said it would hear one hour of arguments on March 26 on whether the legal challenges to the requirement that all Americans buy insurance must wait until after that part of the law has taken effect in 2014.

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The Supreme Court has announced today that it will hear the challenge to President Obama’s signature health care reform law. The Court is expected to hear oral arguments in February or March, with a decision given by June of next year.

A key issue of the challenge, brought by 26 states, is that of the individual mandate in the new health care law, which requires nearly all Americans to purchase health insurance by 2014 or receive penalties. Many economists, as well as states, have strongly suggested that the law cannot stand without the individual mandate.

As the oral arguments are heard at the same time the presidential race heats up, it will be interesting to see how Republican candidate and former Massachusetts Governor, Mitt Romney, who supported an individual mandate in his state’s health insurance reform plan, distances himself from the mandate on the federal level. Mr. Romney has said that, if elected President, he would repeal Obamacare.

WASHINGTON (AP) – A conservative-leaning panel of federal appellate judges on Tuesday upheld President Barack Obama’s health care law as constitutional, helping set up a Supreme Court fight.

A panel of the U.S. Court of Appeals for the District of Columbia issued a split opinion upholding the law. The court agreed to dismiss a Christian legal group’s lawsuit claiming the requirement that all Americans get health insurance is unconstitutional and violates religious freedom.

The requirement has been the subject of several lawsuits, with some judges across the country ruling it unconstitutional and others upholding the law. That means the Supreme Court is sure to decide the fate of Obama’s signature law. The high court is expected to decide soon, perhaps within days, whether to accept appeals from some of those earlier rulings.

The suit in Washington was brought by the American Center for Law and Justice, a legal group founded by evangelist Pat Robertson. It claimed that the insurance mandate violates the religious freedom of those who choose not to have insurance because they rely on God to protect them from harm. But the court ruled that although the requirement is an encroachment on individual liberty, Congress had the power to pass it to ensure that all Americans can have health care coverage. (more…)

From the Associated Press:

States and a business group opposed to President Barack Obama’s health care overhaul asked the Supreme Court on Wednesday for a speedy ruling that puts an end to the law aimed at extending insurance coverage to more than 30 million people.

The high court should strike down the entire law, not just the main requirement that individuals purchase insurance or pay a penalty beginning in 2014, their appeals said.

The filings, on behalf of 26 states and the National Federation of Independent Business, also said the justices should act before the 2012 presidential election because of uncertainty over costs and requirements.

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On today’s edition of Coffee and Markets, Brad Jackson and Elizabeth Blackney are joined by Hans von Spakovsky from the Heritage Foundation to discuss the 11th Circuit case against Obamacare that is now headed to the Supreme Court, why this is the most important of the legal challenges, and how the court may rule.

We’re brought to you as always by BigGovernment and Stephen Clouse and Associates. If you’d like to email us, you can do so at coffee[at]newledger.com. We hope you enjoy the show.

Related Links:

Health reform lawsuit appears headed for Supreme Court
Decision on health-care law means Supreme Court will likely determine constitutionality next summer
Three reasons the White House is taking health reform straight to Supreme Court
Obama Administration Decides Not to Petition for Rehearing in Eleventh Circuit Mandate Case
Hans von Spakovsky at the Heritage Foundation

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From Reuters:

The Obama administration on Monday cleared the way for the U.S. Supreme Court to decide in its 2011-12 term the president’s signature healthcare law that requires Americans to buy insurance or face a penalty.

A Justice Department spokeswoman said it decided against asking the full U.S. Appeals Court for the 11th Circuit to review the August ruling by a three-judge panel of the court that found the requirement unconstitutional.

The decision not to seek review by the full appeals court will likely speed up consideration of the matter by the high court in its 2011-12 term that begins next week. A ruling could come by late June, in the middle of the presidential campaign.

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What is the most important part of the 11th Circuit’s recent ruling on The Affordable Care Act?  You might think it was the individual mandate being struck down.  But it was actually this:  Judicial engagement.

For the first time in our nation’s history, a federal court used the term “judicial engagement” in a ruling striking down federal legislation.   This is a cause for celebration because—regardless of one’s political leanings—we should all agree on the need for engaged judges.  (And regarding the individual mandate, we all know that it will ultimately reach the Supreme Court.)

As the nation’s leading legal advocate for liberty, the Institute for Justice enters courtrooms across America determined to vindicate our most precious rights.  And all too often, our opponents argue that judges should ignore facts or even make them up to justify what the government is doing.

Conservatives, liberals and libertarians should all be able to agree that we need judges that are serious about judging and examining the real facts about what our government is doing.

Today it is fashionable to laud judicial decisions that line up with one’s worldview—and condemn those that do not as “judicial activism.”  So it comes as no surprise that E.J. Dionne referred to the 11^th Circuit ruling on the individual mandate in the Washington Post as “the latest episode of rampant conservative judicial activism.”

But as constitutional expert Robert McNamara points out at The Corner, such responses miss the point.  The 11^th Circuit ruling was fundamentally about the role of courts and when our courts should step in to limit legislative power.

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ATLANTA (AP) – A federal appeals court panel on Friday struck down the requirement in President Barack Obama’s health care overhaul package that virtually all Americans must carry health insurance or face penalties.

The divided three-judge panel of the 11th Circuit Court of Appeals struck down the so-called individual mandate, siding with 26 states that had sued to block the law. But the panel didn’t go as far as a lower court that had invalidated the entire overhaul as unconstitutional.

The states and other critics argued the law violates people’s rights, while the Justice Department countered that the legislative branch was exercising a “quintessential” power.

The decision, penned by Chief Judge Joel Dubina and Circuit Judge Frank Hull, found that “the individual mandate contained in the Act exceeds Congress’s enumerated commerce power.”

“What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die,” the opinion said. (more…)

Imagine America faces a crisis of malnutrition. Millions of Americans are consuming too many processed foods and too few fresh foods. To stem the crisis, Congress enacts a comprehensive food reform law, requiring food sellers to meet minimum nutritional standards and provide access to healthy foods. The new law makes food more expensive, and many Americans opt out of the food market altogether, choosing to grow their own food instead. The food industry teeters on the verge of collapse. To prevent this collapse, Congress passes another law mandating that individuals buy a minimum amount of healthy food each month. Individuals who fail to buy the minimum amount face a stiff penalty.

Can Congress do this? Does the Constitution give the federal government power to make you buy healthy food? These questions are the heart of the Obamacare lawsuits—merely substitute “health insurance” for “healthy food.” If Obamacare’s health insurance mandate is upheld—as the federal Sixth U.S. Circuit Court of Appeals ruled in late June—individual liberty is in serious long-term jeopardy.

The rationale behind forcing individuals to buy health insurance versus healthy food is indistinguishable. The Obama Administration contends that, if people aren’t forced to buy health insurance, the market will collapse. Because Obamacare made health insurance more expensive—doing things like forbidding insurers from excluding those with preexisting conditions—many Americans, particularly healthy young people, would have decided to stay out of the health insurance market altogether and “self-insure.” Government must force these people to buy health insurance, the argument goes, to capture their premium dollars and help subsidize older, sicker people, keeping the overall market affordable and viable.

No matter how ardently you believe the health care system is flawed, or how angry you are at insurance companies, you must resist the temptation to let these considerations distract you from the broader and critically important constitutional choice posed by the health reform litigation. At stake are two related constitutional concepts: “federalism” and “limited and enumerated powers.” These concepts aren’t just quaint, outdated relics. They aren’t about “states’ rights.” They are both designed to protect individual liberty by restraining government’s innate tendency toward ever-expanding power.

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After the birth of our second daughter, my husband and I knew we needed some sort of contraceptive. Not ready for #3, and unwilling to give up the very activity that could lead to another ankle-biter, we decided to take advantage of modern medicine and use birth control.

We settled on the Mirena (and now you know way more about my uterus than you probably wanted to), even though it wasn’t covered by our insurance plan. It cost close to $500, but was economically worth it for us for its longevity. The pharmaceutical company I bought it from negotiated a payment plan with me, and after $35 a month for a year, the thing was paid for.

Sure, it would’ve been nice if insurance had covered it, but it didn’t. It was their choice not to cover the device, and my choice to use it anyway. Key word? Choice.

Obamacare robs American individuals and businesses of free choice at every turn, in the name of the common good. Don’t want to spend money on health insurance? Too bad, now everyone has to buy it.

One of the latest requirements to hit insurers in the U.S. is the birth control mandate. Starting January 1, 2013, health care providers will be legally obligated to offer birth control-with no co pay-to anyone that wants it. This sanction falls under the umbrella of women’s preventative care as written in Obamacare.

Health and Human Services Kathleen Sebelius says:

“These historic guidelines are based on science and existing (medical) literature and will help ensure women get the preventive health benefits they need.”

This isn’t about helping women obtain contraceptives; this is about exerting control over yet another portion of U.S. business. Women already have access to birth control for little or no money. Medicaid (government-sponsored medical care for those that meet income guidelines) covers contraceptives. Planned Parenthood hands out condoms like they’re candy. Walmart fills birth control pill prescriptions for as little as $9 per month.

In other words: If a woman really can’t afford contraceptives, she won’t have a problem getting them anyway.

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President Obama says he doesn’t like bullies. The White House has even launched a website to help kids and parents recognize the signs of bullying and advise them on how to get help.

Maybe the White House should take its own advice, as the individual mandate portion of Obamacare is nothing short of bullying American citizens into purchasing something they may or may not want or need.

Take a look at this short video from Momthink.org:

The video depicts a group of kids playing on a playground, and a big, mean bully coming in and forcing them all to buy lemonade – whether they want it or not. The idea is that the kids playing are Americans, and the lemonade stand bully is the Patient Protection and Affordable Care Act, aka Obamacare. The bully demands that the children purchase his lemonade, and when they can’t afford it, he takes their toys as payment.

The White House articulates three points that bullying involves: 1) An imbalance of power, 2) Intent to cause harm, and 3) Repetition. Let’s take a look at how these concepts apply to the individual mandate laid out in section 1501 of the health care law.

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On today’s edition of Coffee and Markets, Brad Jackson is joined by Pejman Yousefzadeh and Elizabeth Blackney to discuss Jon Huntsman’s past support of Cap and Trade, the stimulus plan, and an Obamacare like individual mandate for healthcare.

We’re brought to you as always by BigGovernment and Stephen Clouse and Associates. If you’d like to email us, you can do so at coffee[at]newledger.com. We hope you enjoy the show.

Related Links:

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Potential Presidential candidate Mitt Romney was in his home state of Michigan yesterday and gave a much-anticipated address on the health care plan he implemented while Governor of Massachusetts.  “RomneyCare” has been cited as one of the models for much of ObamaCare including the very unpopular and (probably) unconstitutional Individual Mandate provision.

RomneyCare is seen as Romney’s biggest obstacle in pursuit of the GOP nomination.

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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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Remember when President Obama signed into law The Patient Protection and Affordable Care Act, more commonly known as ObamaCare, surrounded by grinning Democrats? Before approaching the podium, Vice President Joe Biden whispered to Obama, in a gaffe picked up by open microphones, “this is a big @$#*ing deal!” Naturally, Biden was wrong.

Today, US District Court Judge Roger Vinson decided ObamaCare wasn’t really that much of a big @#&*ing deal after all. Judge Vinson, a Reagan appointee (may peace and happy birthday be upon the Gipper), found ObamaCare violated the commerce clause in the Constitution by creating an individual mandate forcing Americans to purchase health insurance.

Judge Vinson wrote:

“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.”

Judge Vinson even used President Obama’s own words against him:

“I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that ‘if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.’”

Monday’s decision can only be viewed as great news for states and should encourage more anti-ObamaCare legislation and lawsuits. Over half of US states have already filed suits to halt ObamaCare on its anti-Constitutional encroachments. Others states have passed legislation that prohibits the federal government from forcing ObamaCare on their citizens. The judgment today is also a huge opportunity for states to drastically slow preparations for upcoming ObamaCare mandates. Since Judge Vinson stayed his decision because ObamaCare does not become active until 2014, the final decision on its constitutionality will come from the Supreme Court. However, this is the second ruling by a federal judge against the big government takeover of America’s healthcare system.

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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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During his State of the Union address, the President said, “If you have ideas on how to improve this law by making care better or more affordable, I am eager to work with you.”

Mr. President, I accept your invitation. As a small business owner, I know the devastating impact the current law will have on our economy. We all agree that the system is broken and health care reform is necessary. I would love to speak with you about the concerns I have with the law and work together to create health care solutions that serve all Americans. I’m eager to begin the dialogue and work with you to give consumers more choice in their health care decisions.

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