ObamaCare Ruling Will Either Restore or Destroy Liberty

If the Supreme Court rules that the ObamaCare individual mandate is permitted by the Constitution the consequences for individual liberty and the future of America will be catastrophic.  If the court strikes down the individual mandate future Congresses will be on notice that there are still limits to government’s power over the people.

The Court has announced it will rule and has scheduled oral arguments for next April.

Here’s an excerpt from an editorial in the Los Angeles Times by Erwin Chemerinsky, dean of the UC Irvine School of Law setting forth the liberal/progressive/Obama position:

Under current constitutional law, this should be an easy case to predict — the law is clearly constitutional. But what complicates the decision and makes the result unpredictable is whether the justices will see the issue in terms of precedent or through the partisanship that has so dominated the public debate and most of the court decisions so far.

The key word is current.  The progressive movement’s agenda of government supervision and control over the personal and economic lives of The People is prohibited by the plain language of the Constitution.  To overcome this barrier progressive politicians have argued, and Supreme Court Justices have ruled for about a century, that the Constitution was intended to evolve and thus the original meaning of its words is irrelevant.  Instead the court is to establish current constitutional law” based on precedent established by previous court decisions and on the latest trends in progressive ideology.  Mr. Chemerinsky defiantly sneers that consideration of the original meaning of the Constitution as “partisanship!”

Chemerinsky continues:

The primary issue before the Supreme Court is whether Congress’ power to regulate commerce among the states gives it the authority to require that individuals either purchase health insurance or pay a penalty. The Supreme Court has repeatedly held that under the commerce clause, Congress may regulate economic activity that, taken cumulatively across the country, has a substantial effect on interstate commerce.

Yes the court has indeed repeatedly blessed Congress’ expansions of its own power over the lives of the people.  For a century politicians and judges and Supreme Court Justices have brazenly violated the Constitution largely through deliberate misinterpretation of its commerce clause which says:

“The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

The Federalist Papers were written by the authors of the Constitution to explain it to the public.  They make it clear that the progressive interpretation of the commerce clause as expressed above by Chemerinsky is not what the original text meant.

In the Founders era the term “Commerce” was buying and selling transactions, in this case across state lines.  The purpose of the commerce clause was to prevent unnecessary barriers to transactions across state lines.   James Madison wrote in Federalist Paper #22 of problems caused by state governments that were attempting to interfere with commerce:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord…

Madison cited as a negative example the German empire that, similar to America was an association of independent states:

The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.

Madison was concerned that some states had already tried to restrict interstate transactions with various forms of taxes and regulations and could cripple interstate commerce as had happened in the German empire.

But Progressives don’t care about the original purpose or meaning of the commerce clause.  The landmark precedent for Chemerinsky’s interpretation, is the Supreme Court’s decision in Wickard v. Filburn, 317 U.S. 111 (1942).  During the Great Depression Congress had imposed limits on crop production, in an effort to enrich farming businesses at the expense of everyone else by artificially reducing the food supply, which would cause food prices to rise.

Mr. Filburn was fined by the government for growing “too much” wheat.  He argued that Congress had no Constitutional authority to regulate his wheat production because his entire crop was consumed on his own farm, and was not sold to anyone, and therefore could not possibly be part of interstate commerce. The government agreed that Filburn did not sell any of his wheat but argued that he affected interstate commerce by not buying wheat on the open, interstate market.  The court took the government’s side and the rest is history.

Based on this precedent and ignoring the plain language of the Constitution, Chemerinsky justifies a federal law requiring us all to purchase a health plan designed by bureaucrats in Washington because not buying it has “an effect on interstate commerce.”

The word “effect” is not in the Constitution and the intent was not to grant Congress such power.  But since it could be argued that virtually any human activity could, however remotely, effect interstate commerce, we are now told that The Founders meant for Congress and the federal government to have unlimited power to intervene and control every aspect of our lives.   The obvious question is, if they intended for Congress to have unlimited power why did they include a list of limited, authorized powers in Article I, section 8?  If they wanted to empower Congress to be able to require or regulate anything, without limit, why did they add the tenth amendment?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

—Tenth Amendment

In his editorial Chemerinsky tries to rig the process by asserting there are only two questions for the Supreme court to answer:

First, is Congress regulating economic activity? Second, if so, looked at in the aggregate, is there a substantial effect on interstate commerce?

Chemerinsky does not want the Court to ask the question that should come before those two: Does the commerce clause grant to Congress the power to regulate any activity that may be said to somehow have an economic effect on commerce?  (Chemerinsky and the progressives don’t even bother mentioning the interstate qualifier any more.)  By the way, the Obama Administration has not offered any examples of activities that might not be subject to Congressional control under their interpretation of the commerce clause.

The Obama Administration will argue that an individual decision to not buy government approved health insurance is an “affirmative economic activity” subject to regulation by the government.  By that standard we effect commerce even when we sleep because we’re not doing anything and thus commerce must endure eight hours without our participation.

If the Court rules in favor of ObamaCare the next step will be more federal laws designed to regulate our personal lives in order to “hold down the cost of health care.”  Any activity the bureaucracy may decide adds to the risk that we might become an expense to the health care system will be considered for possible regulation.  We can expect restrictions or bans on activities like

  • target practice with guns
  • high school sports
  • boxing, and marshal arts training
  • rock climbing
  • surfing and swimming

Since the bureaucrats are already convinced that obesity is the cause of most health problems they’ll contradict themselves by asking Congress to require us all to work out in a gym regularly even though doing so might risk injury that would require medical treatment.

Logically, we should all be required to drive large SUVs to reduce injury from crashes.  but that won’t happen because it would conflict with another progressive priority, coercing us all into tiny, high mileage cars.

We’re swerving toward the very circumstances the founders fought the Revolutionary War to avoid: a system where all the limits are on the liberty of The People, not on the power of government.

11 Comments so far

  1. AzTex on November 15th, 2011

    You don’t know what you’re talking about.

    Not buying health insurance is “an affirmative economic decision” to stick the rest of us with the cost when you become sick or injured. And you WILL. Nobody goes through this life without ever needing health care.

    That’s not the same as saying Congress can control anything you do. If what you do isn’t going to cost the rest of us money then a court decision in favor of ObamaCare won’t affect you.

    The founders you are so fond of quoting knew that individual responsibility had to go with individual freedom.

  2. SamT on November 15th, 2011

    Republicans only quote the Constituiton when it agrees with their arguments. Thats why we have outrages like the Patriot Act and Guantanamo and torturing prisoners and the war on drugs.

  3. TorranceDrTony on November 16th, 2011

    Obama’s health care law is a horrible maze of regulations that nobody will ever be able to sort out or comply with. The cost to physicians and hospitals is impossibly high. I agree that the individual mandate is obviously unconstitutional. But it should be unconstitutional for Congress to create a regulatory mountain like this for Americans to climb, even if none of the individual parts are unconstitutional.

  4. Blogwood on November 16th, 2011

    The individual mandate is a sensible measure that will lower the cost of health care and reduce government spending. Isn’t that what conservatives are supposed to be for?

    This campaign slogan that it’s “unconstitutional” for congress to reform health care in order to make it less expensive and more accessable is just another right wing wet dream like the one about Obama being a Muslim born in Africa. The Constitution was desgined to enable government to be helpful to people, to protect them from the plutocrats who would deny basic health care to anyone who isn’t wealthy. The founders wisely created a document that can live and breath and grow as our society grows and changes over time.

  5. mite73 on November 16th, 2011

    blogwood says the individual mandate is “a sensible measure.” That’s not how the Constitution works. It doesn’t say Congress can do anything “sensible.” It says government can only do a few things.

    What do you think the 10th amendment means? I guess you DON’T think about it. But it means government can’t take over everyone’s health insurance.

    It’s absolutely true,beyond any possible doubt that ObamaCare is Unconstitutional. The only doubt is about the integrity of the left wing Supreme Court justices.

  6. candyeyes on November 16th, 2011

    Obama came to my campus in 2008 and told us young people were the group covered least by health insurance. He promised to get us all covered if we voted for him.

    Now I guess if you’re under 26 and your parents are lucky enough to have health insurance from their employers the new law requires that employer to cover you too. Of course that makes the insurance more expensive to the employer or your parents but Obama conveniently forgot to mention that when he was campaigning on college campuses.

    What Obama didn’t tell us was that his health care law would include a whole bunch of new requirements that all added together makes health insurance a lot more expensive. He didn’t tell us that our parents would be lucky to still have a job at all after he got finished wrecking the economy and if they did have a job the employer probably would have to drop health insurance because it would become too expensive.

    So what if your parents don’t have a job in the Obama depression economy? Or what if your parents are retired? Or what if they have a job but the job doesn’t include a health insurance policy to cover you? Or what if you are 27 and can’t find a job even though you have a degree and $500 per month in student loan payments?


    Obama didn’t tell us that when he was here on campus asking for our votes. He made it sound like we would be covered for free! Lots of us who were naive believed him. He never said “I’ll take care of your lack of health insurance by sending the IRS to make you pay!”

    You stupid lefties are dragging all the rest of us into your socialist pit. No jobs. Government run health care that doesn’t work. Debt. Don’t even talk to me about the government “helping” people. Obama and his buddies want to be your rulers, not your helpers.

  7. AzTex on November 16th, 2011


    I’m sorry that you’re struggling. But you have to understand who is responsible. It took Bush and the Republicans 8 years to dump us into this depression economy. Obama is doing all he can in spite of Republican resistance to dig us out.

    Some of us – me included – are having a harder time than others. But eventually we’ll all be covered by affordable, high quality health insurance. And soon the price will go down because those companies will be required to spend most of their premiums on health care for us, not on marketing and CEO bonuses and lobbying and lawyers looking for ways to not pay for our health care.

    I wish you the best Candy. Hang in there and volunteer to help President Obama’s reelection. Things will get better for all of us including you and your parents. The right wing nuts don’t have the answer. Closing down the government will only give the wealthy even more wealth and power over the rest of us.

  8. Drew on November 16th, 2011

    President Obama speech: May 2012.

    “I’d like to introduce the Health and Human Services Secretary to discuss the individual mandate, and of course – only naturally – how we will be regulating your diet and exercise program so that your health care costs are minimized. I know you will all eventually come to love broccoli as much as Michele and I do.

    After those initial remarks, the Secretary will describe his decision to give up sex, and what it means for you.

  9. Candyeyes on November 17th, 2011

    AzTex I don’t want your pity. Don’t talk to me like you would talk to a stupid child with your “8 years to dump us into depression” so it will have to take 8 years to pull out. If you had any education at all you’d know economic cycles are not symmetrical.

    AzTex you said “eventually we’ll all be covered by affordable, high quality health insurance. And soon the price will go down…”

    You can’t possibly believe that. No intelligent person believes that campaign bull crap. You are either a union/Obama troll or a f-ing moron.

    Obama and his band of retard politicians wearing economist hats have wrecked America.

    My dad lost his job when his company closed down. He finally got another job but it pays about half what he made before and there is no health insurance. His boss says he can’t afford ObamaCare and will have to go out of business if it isn’t repealed. That’s Obama’s America. That’s our future.

    In seven months I’ll have a degree I can use for toilet paper. Thanks AzTex and all the other morons who elected this socialist.

  10. Bernie Ja on November 17th, 2011

    This all comes down to the opinion of one man who isn’t wedded to the Constituiton: Justice Kennedy

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