Supreme Court Poised To Destroy Individual Freedom

June 26, 2012 2 Comments

The Obamacare decision is going to be handed down on Thursday. It appears that Chief Justice Roberts will be delivering the opinion. That means it’s either 5-4 to overturn at least the mandate or 6-3 to uphold the law. The liberal press is in borderline freak out mode over the notion that this law might be ruled unconstitutional, they can’t imagine how it can be. That largely stems from their refusal to take conservative jurisprudence seriously. Another like of articles the past few days, both on the left and right, have focused on how bad this decision will be for Obama. The bigger question is what will this decision mean for the American people?

A ruling that Obamacare is constitutional isn’t out of the question. I’d say it’s 60-40 that it doesn’t happen, but that means there’s at least a 40% chance that this law is ruled constitutional. What does that mean for freedom in American though? If the individual mandate is constitutional, is there any essential aspect of life that the government cannot regulate? Keep in mind, this is the argument the liberals have been making on Obamacare. Healthcare is something everyone will need eventually and therefore the Commerce Clause allows the government to mandate that we buy private health insurance.

If having the government regulate commerce means they can force us to buy essential products like health insurance there is nothing essential they cannot force us to buy. It is essential that we eat, therefore the government could regulate commerce by forcing us to buy healthy food. People laughed when Scalia suggested the government could force us to buy broccoli but why wouldn’t the government be able to do this? We all have to eat and government may decide to save money on healthcare the American people need to eat healthy food. Therefore as part of its Commerce power, the Congress could order us to buy healthy food. It’s not out of the question, in fact the argument for this is identical to the individual mandate argument.

We could come up with any number of other products that are essential in this life and because they require us to buy something and are commerce, the government could order us to buy them if the individual mandate is upheld. Funeral services, water, shelter, clothing etc. You may laugh at these suggestions but if Congress may use its Commerce Clause power to mandate the purchase of health insurance because health insurance is essential to living, then government can mandate the purchase of all these other essential products of life. You have to wonder though at what point does the consent of the governed cease.

The Federalist Papers argued for the Commerce Clause and nowhere did the founders argue that this clause could order the American people to buy private products. It’s one thing to regulate commerce between the several states to ensure that the states aren’t placing special taxes, fees or regulations on products produced out of state. It’s another thing for Congress to regulate commerce by ordering the American people to buy products, no matter how essential they may be. If government can order us to buy health insurance, there is no power over us that they don’t have. The government will cease to be of the people but it will have become a dictatorship.

I hope that the Supreme Court will rule the mandate unconstitutional and thus place limits on the power of the Federal government. It would not surprise me in the least though if they rule it constitutional. Kennedy is weak and I fear Roberts isn’t nearly as conservative as we had originally hoped. A ruling of constitutional will likely rile up Republicans and propel Romney into office. But even if he is able to repeal Obamacare, the damage will already be done. The Supreme Court precedent will be in place and the next Democrat, if not Romney, will likely take full advantage of it. What the American people must ask themselves though is whether this is the freedom that the founders wanted for this nation.

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Obamacare Ruled Unconstitutional

August 13, 2011 2 Comments

Obamacare was struck down by the 11th Circuit Court of Appeals. The court ruled the individual mandate was unconstitutional as the Congress doesn’t have the power to order Americans to buy products. This decision was important for a couple of reasons. First, one of the judges who ruled Obamacare unconstitutional was a Clinton appointee. Second it creates a split decision within the Courts of Appeal as the 6th Circuit ruled Obamacare constitutional already. With a split in the Circuits, the Supreme Court will certainly take up the case. Because one of the courts ruled this law unconstitutional, I believe it will make it easier for Justice Kennedy (the likely deciding vote) to rule with the conservatives on the Court.

The government acknowledges that there are no court cases out there that allow the government to force people to buy private products. They also acknowledge that Congress has never before ordered the American people to buy a product before. Their claim is that health insurance is “unique” and therefore the government can order Americans to buy health insurance. Last I checked the Constitution didn’t give Congress the power to do things simply because they decide a certain product is “unique.” The government still doesn’t have an response to the question ‘why can’t the government order the American people to buy brocoli?’ After all, isn’t food a ‘unique’ thing that is necessary for all people just like health care?

The 11th Circuit decision was 304 pages, including the dissent. Why this issue requires a 300 page decision is beyond me. In any event, the decision had some interesting tid bits:

Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none….

“Presumably, a future Congress similarly would be able to articulate a unique problem requiring a legislative fix that entailed compelling Americans to purchase a certain product from a private company. The government apparently seeks to set the terms of the limiting principles courts should apply, and then asks that we defer to Congress’s judgment about whether those conditions have been met…..

The government’s five factual elements of ‘uniqueness,’ proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory. The government’s fact- based criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.

It will be interesting to see what the Supreme Court does with this case. If the Court rules Obamacare is Constitutional, the government will be given almost unlimited power to order Americans to buy not only health insurance but just about any product out there. Even if the Court creates some fictitious test for the government in order to allow them to force us to buy things, the power handed to the government will be immense.

Put Obamacare aside for a second and imagine the danger of a government that can order us to buy private products. The potential for corruption is clear. Businesses could collude with Congress to force Americans to buy their products. We would have no choice but to buy the product or pay the fine. The Founders limited the power of government. The Commerce Clause allows the government to regulate business between the several states and with foreign governments. But nowhere in the Constitution is the Federal government given the power to order us to buy things. The Founders would have opposed such a power, for the very reasons I’ve stated. Such a power denies Americans freedom to choose and it opens the door for vast corruption.

I believe the Supreme Court will ultimately rule Obamacare unconstitutional. If the court hears this case during the next term, which it is sure to do, we’ll know by June their final decision. Looking at the court there are four justices that are likely to vote on both sides of the issue. That leaves Justice Kennedy as the fifth and final vote. Kennedy has been a moderate his entire time on the bench, though lately he’s been siding more with the conservatives. Rumor has it he wants to retire soon but is unwilling to do so with Obama in office. That leads me to believe Obamacare will be ruled unconstitutional. But of course, anything can change between now and the end of the next Court term.

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Expanded Commerce Clause Means The End Of American Freedom

July 7, 2011 2 Comments

George Will made a terrific point on ABC’s ‘This Week’ last Sunday. During a round table discussion he posed the following question when the discussion turned to Obamacare’s requirement that private citizens purchase health insurance:

The question is, has the congressional power to regulate interstate commerce been so loosely construed that now Congress can do anything at all, that there is nothing it cannot do. Let me ask the three of you. Obviously, obesity and its costs affect interstate commerce. Does Congress have the constitutional power to require obese people to sign up for Weight Watchers? If not, why not?

The liberals on the ABC panel didn’t have a response to that question. We can extend Will’s line of questioning even further. Michelle Obama has stated numerous times that she believes children should eat fruits and vegetables. Can Congress then order parents to buy fruits and vegetables at the supermarket? Congress and the EPA both believe that clean air is a good thing, can they order Americans to buy home air purifiers?

If it is absurd to suggest that Congress has the power to order Americans to buy fruits, vegetables or air purifiers then why isn’t it absurd when Congress orders Americans to buy health insurance? Where exactly does Congress get the power to order Americans to buy anything, much less private sector products? The Commerce Clause surely doesn’t give Congress that power. It reads that Congress shall have the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

Regulating commerce and forcing citizens to buy products are two different things. The regulation of commerce is limited to creating rules concerning the sale of goods across state lines, it does not include the power to force people to buy products.

We must take Obamacare’s health care purchase mandate to its logical conclusion. If Congress has the power to force Americans to buy private sector products, what freedom is left? Imagine a Congress that is flush with special interest lobbyists throwing money around left and right. Imagine a Congress ripe with corruption and backroom kickbacks. If the Supreme Court determines that the Commerce Clause allows Congress to force Americans to buy products, what sort of shenanigans do you suppose a corrupt Congress and lobbyists might pull? Is it that far out of the question for corporations to pay off Congressmen to pass laws ordering Americans to buy any product imaginable? No longer will businesses have to advertize their products to the masses in order to gain market share, they’ll just have to wine, dine and kickback a corrupt Congress.

This is the danger with Obamacare’s individual mandate. Even if you agree with Obamacare, surely you can see the potential dangers of an expanded interpretation of the Commerce Clause. If Congress can force Americans to buy health insurance, there is no private product on Earth that Congress cannot force Americans to buy. Fruits, vegetables, air purifiers, cars, baseball tickets, rubber tires, yo-yo’s, you name it Congress will have the power to force you to buy it.

An expanded interpretation of the Commerce Clause by the Supreme Court will mean the end of American freedom as we know it. If Americans aren’t free to choose what they want to buy, free from Federal government orders and mandates, then we no longer have freedom. It’s one thing for the Federal government to regulate business in accordance with the Commerce Clause, it’s another thing for the Federal government to force Americans to buy products from private businesses. If the Commerce Clause is expanded, we will have lost our freedom completely.

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