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Constitutional Opinions
Suing Obamacare
The states’ lawsuit over Obamacare raises fundamental issues of individual liberty and government power.
While the lawsuit brought by twenty States challenging the constitutionality of the Obama Administration’s healthcare legislation initially received much publicity, the Administration’s recent response to that lawsuit has garnered relatively little attention. However, even a cursory review of the Administration’s motion to dismiss the case presents an expansive view of government power and a narrow construction of individual liberties that is profoundly troubling.
The Administration’s response to the States’ lawsuit can be summed up in a single word: surreal. The Administration devotes most of its submission to arguing that the lawsuit is premature because individuals and the States have not yet suffered any injury or that any injury is “speculative.” In making this argument, the Administration simply ignores reality. Already, insurers have indicated that the new healthcare legislation will impose additional costs, increase premiums, and restrict the scope and availability of private insurance coverage. In fact, the Administration itself concedes that some individuals will “suffer injury” when the legislation becomes fully effective in 2014.
More fundamentally, there can be no dispute that the legislation interferes with individuals’ freedom to make health care decisions and engages in a massive redistribution of wealth. The Administration’s brief acknowledges that the legislation imposes a significant “tax penalty” for those who fail to purchase health insurance (the so-called “individual mandate”) that “will raise substantial revenue,” while at the same time extending “subsidies and tax credits to the large majority of the uninsured.” The Administration’s assertion that the ability to make health insurance decisions constitutes a “purely economic interest, not a fundamental right” similarly ignores the fundamental nature of such decisions. Decisions regarding one’s own health and medical care are among the most significant, and personal, decisions one can make.
The Administration’s expansive view of the federal government’s power is likewise profoundly disturbing. In order to defend this unprecedented government power grab, the Administration argues that the federal government’s authority is essentially unlimited, asserting for example that “Congress’s taxing and spending power under the General Welfare Clause is ‘extensive.’” However, the federal government has never claimed, and the courts have never held, that the government has authority to essentially dictate one-sixth of the nation’s economy. Indeed, while the Administration characterizes the States’ lawsuit as meritless and based on “philosophical or political opposition” rather than solid legal grounds, it takes the Administration sixty pages to explain why it has not overstepped constitutional bounds.
Recognizing the tenuous nature of its claims, the Administration’s brief seeks to downplay the health care legislation as merely an “expansion” of the existing Medicaid system. Once again, however, the Administration simply ignores reality. The Administration and its supporters repeatedly characterized the health care bill as landmark legislation that “answered the call of history.” Indeed, the Administration’s own brief acknowledges that the legislation imposes a “comprehensive system of reform” that seeks to regulate “a vast interstate market consuming an estimated 17.5 percent of our gross domestic product.”
Perhaps most troubling, the Administration justifies its exercise of this sweeping power by characterizing the American public as either infantile, unable to make appropriate choices regarding its own health care, or as malicious. It argues that the individual mandate is an “essential” aspect of the health care legislation because, in its absence, individuals may make the “wrong” decision and forgo health insurance, potentially leading to a number of negative consequences for their own health and economic welfare. However, the Administration goes even further, arguing that, in the absence of the individual mandate, the American people might “game the system” by “waiting until disease develops or an accident occurs to purchase insurance.”
The implications of the government’s arguments in defense of the health care legislation are significant. The worldview espoused by the Administration is one in which the power of the federal government is unlimited and in which that power must be exercised because ordinary Americans are simply incapable of managing their own affairs and must have government bureaucrats do it for them. Once again, the Obama Administration has demonstrated that it is profoundly out of touch with the vision of our founders — and the American public.
Recently we celebrated our independence from overweening government. As the Administration’s arguments make clear, we are losing the same freedoms that our founders sought to preserve.
Letter to the Editor View all comments (35) | Leave a comment
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Louis Jenkins| 7.20.10 @ 8:04AM
BMI. Body Mass Index. The Pretender n Chief health care has even declared that by 2014 our BMI will be turned over to Kathleen Sabilus. Our records must be electronic-fied by 2014 and turned over as well. This is unwise and haggard. If your BMI is too high, well, you go to the end of the line and await a hip replacement. If you smoke, the same thing, possible not at all. Our Pretender- in control.
"the American public as either infantile, unable to make appropriate choices regarding its own health care, or as malicious. "
Karl P. Seidel| 7.20.10 @ 7:52PM
The good news about the healthcare takeover is that the band of community organizers hired to write the bill failed to include a separability clause. That means is any part of this law is found to be unconstitutional the entire law goes down the tubes. Then, we the people, force the Congress to begin impeachment procedures against the Marxist driving force behind this boondoggle. Senator Joe McCarthy for all his faults must be spinning in his grave. As Winston Churchill once wrote, "Socialism is a philosophy of failure, the creed of ignorance, and the gospel of
envy, its inherent virtue is the equal sharing of misery."
Indy Voter| 7.21.10 @ 9:20AM
I'm pretty sure there was a separability clause, I know it was in one of the versions I read. The BMI clause and electronic record keeping was in the Stimulus Bill, not the healthcare bill, they should be easy to carve out and repeal...privacy matters.
damocles| 7.22.10 @ 8:01PM
"severability clause" to be exact. But the federal courts have become so pro-govt that it may not matter.
chuck| 7.20.10 @ 8:16AM
All I can say to this present regime is "Damn you all!"
This is the greatest nation, the leader of inovation, the greatest wealth producer that ever was. Even our poor people have a relatively high standard of living. This was no accident, no random chance of nature. The liberty and private propery rights guaranteed in oud Constitution, and paid for in blood by many, too many patriots gave us this. Now these marxists want to destroy this great nation for their own political power.
DAMN YOU ALL!
Dan Hirsch| 7.20.10 @ 8:25AM
Possibly there's a golden arrow at the heart of this lawsuit.
Obama's Justice Department claims that the power to levy and collect taxes is their basis for the mandated purchase of health insurance. Is the purchase of a service from a private firm a tax?
SCOTUS cannot be that addled, can they?
Yet the Obama Justice Department argued that the power to levy and collect taxes is even broader than the commerce clause. If the SCOTUS finds that even the power to levy and collect taxes does not authorize the health care mandates, is there a key to unwinding all of the commerce clause driven federal power grabs of the last sixty years?
Come on US Constitution!!!
Nolite conculare me!
Len| 7.20.10 @ 10:27AM
One of the more despicable twisting of powers it that of the taxing power. It has been turned into a license to spend when it says nothing more than raise revenue for certain purposes. There is however no grant of power other than raise revenue, the rest of the clause is actually a limiting clause stating that the taxes may only be for general welfare and common defense. There is no clause that actually grants the congress authority to legislate for general welfare and common defense, these fall under the rest of the powers listed in Article 1, Section 8 and are all that were considered necessary.
REB| 7.20.10 @ 10:45PM
And this argument is after he promised no American making under 250,000 a year would see any tax increases! He mocked George Stefanopolis in an interview last fall and insisted that it was NOT a tax...now that he sees his scheme falling to hell he decides to indeed call it a tax so he can claim authority to impose this carnage on a free people! I have no insurance and no money and I sure as hell am not going to buy any just because this tyrant wannabee says so,nor will I be granted welfare status by this thug and be put into the system,I have been lawabiding and have minded my own business all my life,but now they have gone to meddling and sadly someone will probably get hurt in this fight.
Joseph| 7.21.10 @ 7:12AM
I don't have the link to hand, but a couple of days ago the Volokh Conspiracy blog linked to an article which pointed out that even if the mandate was a tax, it was unlawful. I think the argument was something like this:
1. It isn't an income tax, but even if it were, it is not on derived income and is thus unconstitutional
2. It isn't an excise tax because an excise tax can only be on action, not inaction; but even if it were, it is not uniform and is hence unconstitutional
3. It must be a capitation; a capitation must be proportioned to the population of states, which this is not and is therefore unconstitutional.
In other words, the tax argument fails unless the courts basically ignore the constitutional provisions limiting the tax power.
Dan Hirsch| 7.20.10 @ 8:30AM
AND Another thing.
When Barack Obama said in one of the Presidential debates that health care is a right, he unwittingly confirmed his support for slavery.
Listen up, it's not that complicated:
"Healthcare" is the provision of products and services that tend to improve one's health. Products and services are tangible things that come from the productive efforts (work) and capital of its owners, i.e. doctors, nurses, pharmacies, hospitals. If I have a right to "healthcare" I have a right to other people's work and capital. What we used to call slavery...
This is not crazy, it's fundamental.
Nolite conculare me!
Lazy Jack | 7.20.10 @ 9:08AM
A more interesting interpretation is that the mandate is in fact, an indenture. In other words, from birth every U.S. citizen is now obligated to pay to a private entity a fee just for breathing. If I want to pay no tax, for example, I merely cease to work, or purchase goods, etc. If I do not want to pay auto insurance, I do not have to drive.
However, my health insurance debt appears to accrue from inception, is unavoidable and payable to a private entity. In other words, a private individual or corporation owns part of my life. What does that sound like to you?
Lazy Jack
www.thanksforthelaughs.wordpress.com
http://thanksforthelaughs.word.....-thinking/
Curtis Rasmussen| 7.20.10 @ 3:20PM
I agree with lazy Jack on this one. We will all become corvees of the state.
The price to breathe American air will be imposed on us from birth. People will be coerced to make choices in ther lives for fear of losing one of their healthcare 'rights'. Smoking, risky sports, diet and exercise, old age, (but mostly inability to pay taxes) and anything else these bureaucrats can conjure will be fair game. Don't cooperate and you'll end up prematurely dead.
Bow to your master landowners Pelosi, Reid, and Obama the pseudo-dictator.
Karl P. Seidel| 7.20.10 @ 7:58PM
This law is so Byzantine in its scope to tax. As an example, if you do have health insurance and that insurance is provided by your employer, either in part or completely, you will be taxed on the employer's contribution to your health care. The 2010 W-2 forms are being modified as we speak to include a new box to indicate the dollar amount of your employer's contribution to your healthcare. This is gonna make our community organizer in chief really popular.
damocles| 7.22.10 @ 8:02PM
the 14th Amendment did ban involuntary servitude.
Ill Logic| 7.20.10 @ 9:58AM
So individuals in this country have a fundamental right to refuse health care (from the response - Cruzan v. Dir., Mo. Dep 't ofHealth, 497 U.S. 261 (1990)) but not health care insurance. Isn't health care insurance just a financial derivative? So the administration is mandating the use of financial derivatives in one industry and limiting them in another..
Yosemeti Sam| 7.20.10 @ 10:02AM
Folks - them Democrats and their lactose PEN1 media are sitting pretty - under the sword of Damocles.
Wait for the 'cut' in November.
LOL.
John2| 7.20.10 @ 6:51PM
Yes, in November vote the people who promote this garbage out. Out, every damnable one of you cockroaches, out, out, out...
See? It will be fun once you get started.
ALL this krappe is going to stop in November. There are many ways to resist and confound the lefty at the state and local levels.
In time, repeal comes up and will pass with huge majorities.
Clinton nee Publius | 7.20.10 @ 10:21AM
The really sad part about this is that there is a way to provide a universal health care benefit to all of our people and at a cost of $30 per person, per month and with copayments of 2% on everything but electives (they have a 7% copayment in this plan) that also pays all costs on a current, fiscally-responsible basis and without rationing care to anyone. No discrimination, no government corruption, built-in tort reform and no more out of control health inflation costs. The plan is called "The Fix For Health Care" and is part of the The Fix - Capitalism Version 2.0 that is one of the centerpiece public finance plans provided by Lovellian Economics (google it).
There are no answers with Obamacare because the way they have contrived the program the government will (of course) corrupt the operations of the private-sector health care system, steal the money (as it already does with Social Security, Medicaid and Medicare) and reduce the care available to all. It cannot have any other outcome due to the laws of mathematics and the structure of our economic society. The only fiscally-responsible and workable solution for this problem is provided by Lovellian economics. Everything else is just more of the political class and the liberal-progressive movement finding new ways to steal your money and your freedom.
ds80| 7.20.10 @ 1:29PM
" there is a way to provide a universal health care benefit to all of our people"
Your assumption is wrong: where is the Constitutional right to healthcare stated?
Pete Seidel| 7.20.10 @ 8:02PM
Where is the Constitutional right to redistribute wealth stated?
The community organizer in chief swore to uphold and defend the Constitution. It is blatantly obvious that he has not, can not, and will not honor that oath. Why haven't we begun impeachment?
bill carson| 7.20.10 @ 11:05AM
"Once again, the Obama Administration has demonstrated that it is profoundly out of touch with the vision of our founders -- and the American public."
Hahahha! If only that were true! The America public willingly handed over virtually dictatorial power to Democrats. This was done qutie voluntarily. Now it is time for the public to pay a big price. Crying to Ruth Ginsberg isn't going to save a stupid public now!
Stan Redmond| 7.20.10 @ 11:24AM
Obama and the dems can simply stack the supreme court like FDR. They have little time to accomplish this and with the liberal republicans he would probably get "bipartisan" support for this. Obama can rush Kagan's confirmation easily. Then, add a few more seats with Snowe and Collin's support, then rush the rest of the new nominees in a "bipartisan" manner. Rush any lawsuits to the court before the new Congress is sworn in 2011. Sounds far fetched doesn't it...
And no federal funds will go to abortion, Obama wrote a piece of paper that said so...
Padoux| 7.20.10 @ 12:37PM
Why not a penalty if a person doesn't buy a fuel efficient car, the right kind of AC and heating, boats, lawn mowers, leaf blowers? Of course what will be done in those instances will be the imposition of confiscatory excise taxes to direct human economic behavior, thus resulting in only the rich having some economic freedom. I hope the Court throws out the mandate, otherwise there is virtually NO limit on federal power.
Louis Jenkins| 7.20.10 @ 2:03PM
Dear Padoux:
Get ready, 'cause its coming down the tube. We'll have just what you're speaking of.
John Navratill| 7.20.10 @ 3:22PM
The penalty exists already. You MUST buy toilet you must flush twice. You cannot buy a showerhead which isn't a dribble. You will pay a gas guzzler tax if your car isn't fuel efficient. Next year you will not be able to buy a 100-watt incandescent light bulb (so stock up now).
mike| 7.20.10 @ 3:09PM
The wording of the bill clarifies that it is a fee or mandate not a tax. There are plenty of other mandates in the bill that take away freedom of choice and shred our constitutional rights. The whole bill needs to be reviewed by the Supreme Court without delay as their duty is to monitor all legislation to ensure it is in accordance with the US constitution.
Oldefarte| 7.20.10 @ 3:12PM
Obamacare's original, disguised intent was noting but GOVERNMENTAL WELFARE, pure and simple. It was not about improving health insurance, medical care of the middle class,etc. Hopefully, either these states' lawsuits will be successful or if the November and 2012 elections provide Republican victories, future legislators can repeal, defund or destroy this WELFARECARE!!!!!
John Monte| 7.20.10 @ 6:47PM
It is all about playing God at any time any citizen can claim they object on religious teachings at any time but in the health care mess the ruling came down that Muslim; Hindu and the Amoish are excused but other religions are not but wait that is discrimiantion; all lawmakers are excused but the most privlaged like botox Pelosi get a better deal agaimn dsicrimination.
The republicans are asleep at the wheel
I hope teh country crashes and China come in for teh rescue; they need our market to support their economy
ghquiet | 7.20.10 @ 10:23PM
Nike Any shoes
if you fall, get up and try it again.
if you drop, get up and try it again.
if you fall, get up and try it again.
if you drop, get up and try it again.
FTM| 7.21.10 @ 2:03AM
What this is all about, in my most humble opinion, is subugation. The healthcare bill basically subjects every living American to the federal government. Same case with the Gulf oil spill and waiting so long to take any action. The more oil in the Gulf the longer that those nasty, greedy 'ol capitalist fisherpersons will be subjected to the federal government. A happy coincidence for President Obama. I don't think that anybody is coordinated enough to orchestrate such a disaster for their own benifit.
President Obama is a genius. President Obama is a genius in the same way that President Johnson was a genius with his "War on Poverty," Great Society program. The War on Poverty was nothing more than a scheme to pay welfare dependent people to produce even more welfare dependent people that don't know much other than to check the box next to the picture of the little donkey every other year.
Now, I really don't know why the subugation of so many people is so important. I don't get it. Once everybody is in the wagon and nobody is pulling the wagon then what? Who is going to pay the bills? Will there be a truck come by the barracks that I live in in the morning to take me to the factory to work to produce what consumer good or commodity that who is going to buy?
If the pattern that I see is indeed the ultimate goal of the "progressive" element in this country then it also seems to me that their efforts are ultimately sterile.
Jan| 7.22.10 @ 10:06AM
I smell an obvious hypocrisy on the part of the chosen one and his fascist eletists. If they argue that the lawsuit is premature because individual states have not yet suffered any injury, or that any injury is "speculative", how do they justify their pre-emptive lawsuit against Arizona's imigration law? I don't recall hearing about any injury as a result of a law which hasn't been enacted in Arizona yet.
Lunar| 7.22.10 @ 1:20PM
Actually, they do have that one. Stepping on the feds' toes by regulating immigration is causing injury to them. In my opinion, the Arizona law is doing nothing more than supplementing the federal government's ability to enforce the federal law. It is only injurious to the federal government if the federal law is enforced differently than the feds intend to enforce it... i.e. someone does enforce it. The lawsuit states that the feds have the sole right to determine how the law will be enforced or not enforced by taking into consideration things like the opinions of the nations whose people against whom we are enforcing the law.
My interpretation of the law nulls the feds' argument, but I don't see the claims they make in the lawsuit as hypocritical to these claims about the healthcare law.