Dr Matt's Summary and Analysis of the Constitutionality of
Why is RomneyCare Constitutional
Does the Federal Government have Constitutional Authority
Prior to the passage of ObamaCare, the State of Virginia passed a law which says Virginians can't be compelled to buy health insurance or compelled to pay a penalty if they refuse to buy health insurance. The Fed has formally answered the Virginia Lawsuit and offered Six 6 Reasons why the Federal Court should dismiss the case.
On July 1, 2010, oral arguments on this Motion to Dismiss were made at U.S. Federal District Court in Richmond, Virginia — called the Rocket Docket because of the speed with which it proceeds. Judge Henry Hudson has denied the Fed's Motion to Dismiss; thus the Virginia Lawsuit goes forward.
Because the Fed has lost confidence in the "Commerce Clause" defense, they tried to argue that they can penalize citizens for failure to buy insurance, because that penalty is really "a tax." But here's the problem: When ObamaCare was crafted, authors and supporters of the Bill carefully avoided calling the penalty "a tax." Judge Hudson noted that Barack Obama has publicly denied that the penalty is a tax; the Judge asked federal lawyers, "was [President Obama] trying to deceive the people?"
In a Florida lawsuit against ObamaCare, a Judge has also ruled that federal lawyers cannot rename the penalty as "a tax," for legal convenience. But even if the ObamaCare Bill had called the penalty "a tax" from the start and invoked Federal Taxation Authority, there is still a Constitutional Flaw in this Defense. As for the "Commerce Clause" defense, Judge Hudson expressed concern, saying the federal government's theory suggests that Congress could order citizens to "buy a car, join a gym or eat asparagus" if the Commerce Clause can empower the Fed to force citizens to buy health insurance.
Update December 13, 2010. United States District Judge Henry E. Hudson has entered his decision. The following are quotes from Judge Hudson's 42-page ruling:
District Judge Henry Hudson ruled that the ObamaCare Mandate is “beyond the historical reach of the Commerce Clause.” (p. 24) Why so?
"The unchecked expansion of congressional power to the limits suggested by [ObamaCare] would invite unbridled exercise of federal police power. At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate." (p. 23)
"Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity, … The constitutional viability of [ObamaCare] in this case turns on whether or not a person's decision to refuse to purchase health care insurance is such an activity." (p. 23)
Hudson's ruling rejects the government's view that a decision not to buy health insurance is economic activity subject to regulation under the Commerce Clause. The Federal Judge explained that no high court has extended Commerce Clause powers “to compel individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” and thus, concluded that the ObamaCare mandate “exceeds the Commerce Clause powers vested in Congress under Article I” (p. 24)
The Government tried to justify ObamaCare through the Constitution's "Necessary and Proper Clause," which grants broad Congressional powers that are not enumerated powers. In an 1819 Supreme Court decision, Justice John Marshall wrote that Congressional Authority via the Necessary and Proper Clause, while broad, "its authority is not unbridled." Thus Congress has only power to enact laws that are "within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."Judge Hudson ruled that the ObamaCare mandate “is neither within the letter nor the spirit of the Constitution.” (p. 24)
"If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such a provision under the Necessary and Proper Clause is equally offensive to the Constitution." (p. 19)
The Government tried to justify the ObamaCare mandate via the "General Welfare Clause," a clause that is embedded within the Congressional Taxation Power. But to invoke the General Welfare Clause, the Government has to argue that the "penalty" for not buying Health Insurance — as mandated by ObamaCare — was really a tax. To this Hudson pointed to the historical record of "pre-enactment representations," where both the "Executive and Legislative branches" called the "penalty" for failure to purchase healthcare insurance a "penalty" and not a "tax" — thus the General Welfare Clause has no force.
Some strident voices contentiously claim that repealing & replacing ObamaCare is equivalent to wanting people to die in the streets. But the best Health Care Reform will not only be Compassionate, but also Constitutional, and will NOT kill the Economy by driving up the National Debt.
The State of Virginia alleges that the Federal Government has no constitutional authority to force citizens to buy health insurance. Prior to this lawsuit, the justification for making ObamaCare into law centered on the Commerce Clause. Now that the legal arguments are before a Judge, federal lawyers have tried to ditch the "Commerce Clause" defense and justify ObamaCare through the Power to Tax — one of the enumerated federal powers set forth in Article 1 Section 8 of the Constitution.
However Henry Hudson rules, this case is destined for appeal by the losing party. The Judge himself has said "This court is just a brief stop on the way to the Supreme Court." How the High Court rules on this vital issue will determine whether the Federal Government continues to grow in size and power.
The natural progress of things is for
Ever since the New Deal, Federal Government has grown in size and power, far beyond the original intent of the Founding Fathers. James Madison, the principal author of the Constitution, said this of Government Powers:
The powers delegated by the Constitution
“We the people” possess power to put Big Government on a diet and form a smaller, smarter Federal Government with powers that are again “few and defined.” Thomas Jefferson also said:
When the people fear the government, there is tyranny.
As citizens become educated about the Constitution, elected representatives will necessarily “fear the people.” The collective voice of we the people will be respected because government leaders will know that the people cannot be fooled by misleading political spin. The Declaration of Independence states:
That whenever any form of government is destructive of these ends [Life, Liberty, and the pursuit of Happiness], it is the Right of the People to alter or to abolish it, and to institute new Government.
If the Supreme Court fails to uphold the Constitution as the Founding Fathers intended, we the people have power to form “new Government,” to include a new Supreme Court, that will honor and obey the Law of the Land — The Constitution of the United States.
The State of Virginia has passed the "Health Care Freedom Act" — "No resident of this Commonwealth shall be required to obtain or maintain a policy of individual insurance coverage." This State Law directly conflicts with "The Patient Protection and Affordable Care Act" (ObamaCare). Which of these two Laws will be ruled Constitutional by the Supreme Court?
Our lives begin to end the day we become
Rules for Radicals: Framing Issues in Black vs. White
From Saul Alinsky's book "Rules for Radicals," here's rule #13: Pick the target, freeze it, personalize it, and polarize it. Within Alinsky's mindset, “polarize it” means to ignore any “common ground” you might have with opponents: paint THEM all black and paint US all white.
“Polarizing” is a propaganda techniques aimed at persuading (brain washing) supporters into believing that they are 100% on the side of the Angels, and those who oppose are 100% aligned with the Devil. This is precisely why much Rhetoric in support of ObamaCare is about Compassion for the poor; with the logical conclusion that anyone who opposes this Heavenly Cause must necessarily be . . . a heartless demon destined to burn in Hell.
Rule for Radicals #10 encourages "the organizer" to cloak issues in such a way as to gain the Moral High Ground: "clothe it with moral garments." In Alinsky's political scheme, because "the end justifies almost any means," appearance is everything! Rhetoric surrounded by appealing smoke and mirrors is more important than honest accounts of Reality — sound like the tactics of any politicians you know?
Having compassion for fellow citizens who struggle with challenges of health and finance IS an issue that matters. Applying Alinsky's Radical Rule #13, some strident ObamaCare supporters contentiously claim that Repealing & Replacing ObamaCare is equivalent to wanting people to die in the streets. Clearly, framing the issue this way IS an attempt to Polarize.
Truth is, there is a better alternative: Health Care Reform that is Compassionate, Constitutional, and will NOT kill the Economy by driving up the National Debt. The best Health Care Legislation will be Constitutional and Economy Compatible — and not just "Compassion" entangled in Complexity and Bureaucratic Inefficiency.
You don't have to be a Brain Surgeon or a Constitutional Scholar to understand that Win-Win-Win (Compassionate, Constitutional, and Economy Compatible) is better than Win-lose-lose (Compassionate, un-constitutional, and economy killing).
One of the Federal Government's enumerated powers is to regulate Interstate Commerce. Here's how the United States Constitution describes that power:
The Congress shall have Power — To regulate Commerce with foreign Nations,
Here is why invoking the Commerce Clause fails: It is clear that "doing nothing" is NOT an act of commerce. Thus "doing nothing" cannot be regulated by the Federal Government via the Commerce Clause. In contrast, if the act of a "doing nothing" on the part of some citizens, impacts Life, Liberty, and Happiness with a State, that State can legislate Mandates for the benefit of all State residents.
But the federal issue is not that easy: One Supreme Court case, Gonzales v. Raich, raised a question of "undercutting" in regard to regulating Interstate Commerce. Hence the question arises: Will an American citizen's choice to NOT purchase a good or service (health insurance) have an effect upon Interstate Commerce that "undercuts" a broader regulatory scheme of Interstate Commerce?
But this question jumps the gun! The "act of non-commerce" that is alleged to undercut a broader regulatory scheme, is a commerce question originated/created by the ObamaCare Mandate, in the first place. This means, that the Federal Government is both attempting to originate/create a situation of commerce by law (mandating everyone to buy insurance), and then turning around and declaring: "we must now regulate the commerce we have originated/created."
In other words, the constitutional regulation of "Commerce . . . among the several States" is Commerce that the States originate/create; thereafter, the Federal Government has constitutional power to regulate that State-Initiated Commerce.
So even if "doing nothing" does have an effect upon the regulation of Interstate Commerce, this legal logic leap frogs over the prior question, a question that the Supreme Court has never ruled on: Does the Federal Government have the constitutional power in the first place, to require individual citizens to purchase a product or service — can the Fed force citizens to buy health insurance?
According to the Federal Judges who have ruled in the Virginia and Florida Lawsuits against Obama-Care, the answer is "no!" — the Commerce Clause does not justify the regulation of non-commerce among the States — acts of non-commerce originated/created by the ObamaCare Mandate in the first place.
Virginia Lawsuit Against ObamaCare
Under penalty of law, ObamaCare will compel all citizens to buy health insurance or pay a penalty — again, the Fed is trying to call this penalty "a tax," because Taxation Authority is granted to Federal Government via the Constitution. However, citizens of Virginia have been granted liberty by State Law to be free from federal coercion: Citizens of Virginia have freedom NOT to purchase health insurance.
The Virginia law suit alleges that the Fed has no constitutional authority to force citizens to buy "a good or a service." Such coercion by Federal Mandate overreaches States Rights reserved in the Tenth Amendment, AND also violates Individual Rights protected by the Ninth Amendment.
In addition to the State of Virginia's Law Suit, twenty 20 States have jointly filed suit in a Florida federal court, also alleging that President Obama's Health Care Reform Bill is unconstitutional. The two Law Suits have one common issue: On page 19, stipulation #65, the "Florida" Lawsuit asserts:
"The [Patient Protection and Affordable Care] Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8."
While purchasing insurance is correctly deemed an act of commerce, the "lack of or failure to engage" in commerce cannot be considered . . . an act of commerce; thus such inactivity (doing nothing but being an American citizen) cannot be regulated by the Commerce Clause of the U.S. Constitution.
The Federal Government has "enumerated" powers: Eighteen 18 explicit powers total. In just a few minutes, you can read ALL the powers that the Federal Government has been given BY THE STATES. All other powers not mentioned in this list of 18 eighteen, are powers reserved to the States, as granted in the Tenth 10th Amendment.
Update: The Federal Government has formally answered the Virginia Lawsuit and offered Six 6 Reasons why the Court should dismiss the case.
Because the State of Virginia has file its Law Suit, there is a Constitutional Clash to be answered by the Supreme Court: Either Virginia's Health Care Freedom Act will be deemed Constitutional, OR Obama Care's Mandate will be deemed a Constitutional application of the Commerce Clause. Both cannot be Constitutional: It's going to be one . . . or the other.
Here's a pdf of the Law Suit filed by the State of Virginia if you wish to read the legalese. The following is my summary of the Law Suit filed by the Virginia's Attorney General. The number in brackets [#1] refers to the number of the stipulation in the actual Lawsuit.
* The Patient Protection and Affordable Care Act (who knew that was the real name for Obama Care?) contains a mandate for all Americans to purchase Health Insurance under penalty of civil law — of course "mandate" means that citizens are "required." [#1]
* Virginia State Government has enacted the Health Care Freedom Act: "No resident of this Commonwealth, . . . shall be required to obtain or maintain a policy of individual insurance coverage" [#2 & #3]
* ObamaCare contains no severability provision; meaning, various ObamaCare rules and regulations cannot be "severed" out from the body of the whole legislation. If one single aspect of ObamaCare is deemed unconstitutional by the Courts, then the all of ObamaCare is necessarily nullified. Thus even portions of ObamaCare that "may" be constitutional, cannot be severed out and maintained as the law of the land. [#6]
* The Virginia State Law (Health Care Freedom Act) is valid, in spite of the Supremacy Clause of the Constitution, because the federal mandate forcing citizens to purchase insurance is unconstitutional. [#7]
* In the past, Congress has paid for Social Security and Medicare through direct taxation. [#11]
* The United States Congress lacks the political will to be honest with Americans by taxing citizens directly to pay for Obama Care; but because direct taxation would have been unpopular, such a method for paying for Health Care Reform would have made said Reform un-passable. Requiring uninsured, healthy citizens to buy insurance is actually taxation through the back door. [#12]
* In order to pay for the massive costs of Obama Care, the bill must require millions of uninsured, healthy citizens to purchase health insurance, and the payment of those particular premiums will subsidize the cost of covering unhealthy citizens. [#13]
* Because all Americans will be insured regardless of preexisting conditions, there is a built-in disincentive for citizens to begin paying premiums — meaning, people can "game" the system by beginning premium payments only when they get sick. In other words, here is one ObamaCare loop hole: pay the premium or pay the penalty, which ever amount is least. [#14]
* Before passing the Universal Health Care Bill, the Senate questioned whether they had constitutional authority to require all citizens to buy Health Insurance. For this reason, in 2009 the Senate Finance Committee asked the Congressional Research Service to render an opinion about the constitutionality of the mandate — can the Fed force citizens to buy a good or service? The Senate Research Service concluded: "Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this Clause to require an individual to purchase a good or a service." In other words, this issue is uniquely "new" and has never been addressed by the Supreme Court. [#15]
* In United States v. Lopez and United States v. Morrison, the Supreme Court struck down federal attempts to regulate non-commercial activity — even considering predicted effects of such non-commerce upon interstate commerce. In these two cases, the Supreme Court ruled that federal government had overreached authority granted by the Commerce Clause. In Gonzales v. Raich, the Supreme Court wrote: "Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute [in Morrison] unconstitutional because, like the statute in Lopez, it did not regulate economic activity." [#16]
* The status of being a citizen of the Commonwealth of Virginia arises out of an absence of commerce and is entirely passive: In other words, being a citizen of a State or Nation is NOT fundamentally a channel for interstate commerce, nor a person or thing in interstate commerce. [#17]
* In Gonzales v. Raich, the Supreme Court ruled that the Fed had Commerce Clause authority due to the aggregate effects of non-commerce activity (growing marijuana at home for personal medicinal use) upon potential Interstate Commerce. Meaning, if individuals are allowed to grow marijuana at home for "personal medicinal purposes," this opens a Pandora's Box for increased illegal interstate sale of marijuana. Nevertheless, the High Court has never held that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services. And to depart from this 200 year history — permitting national government to require citizens to buy goods and services — will deprive the Commerce Clause of any effective limits — contrary to limits set in Lopez and Morrison. Authorizing the fed to force citizens to buy health insurance under penalty of law, would create police powers indistinguishable from those reserved to the States by the Bill of Rights — and thwart the constitutional scheme of few and enumerated powers assigned to the federal government. [#18]
* Concurring with the Majority Opinion in Gonzales v. Raich, Justice Scalia ruled that regulation of non-economic under the Commerce Clause is possible only through the Necessary and Proper Clause — but this Clause establishes that the means by which laws are instituted must be "appropriate," "plainly adapted to that end," and are "consistent with the letter and spirit of the constitution." Plainly stated: Congress cannot use unconstitutional means to execute the laws they pass. [#19]
* In 1798, Justice Chase wrote these words in one of the first Supreme Court decisions: "An ACT of Legislature (for I cannot call it a Law) contrary to the great first principles of the [Constitution], cannot be considered a rightful exercise of legislative authority . . . A few instances will suffice to explain what I mean. A . . . law that takes property from A and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers." This analysis applies equally to citizen-to-citizen subsidy that occurs through the Obama Care mandate. [#20]
* WHEREFORE, the Commonwealth of Virginia prays this Court to declare the Patient Protection and Affordable Care Act (Obama Care) unconstitutional because the individual mandate exceeds the enumerated powers conferred upon Congress. As a consequence, this Court should also declare that the Health Care Freedom Act is a valid exercise of state power.
Federal Government Argues: Virginia is not injured by the federal health care law.
Because the federal health care law purports to invalidate a Virginia law (the Health Care Freedom Act) under the Constitution’s Supremacy Clause, Virginia’s sovereign interests have been injured.
Federal Government Argues: Because the mandate doesn’t take effect until 2014, the case is not “ripe.”
1) Based on several previous Supreme Court decisions, if a dispute is certain to occur in the future, this does not prohibit the suit from being brought in the present.
2) Virginia has already been forced to make decisions regarding insurance exchanges under the act, as well as changes to Medicaid. One of those decisions made the commonwealth forego more than $100 million in federal money.
Federal Government Argues: Virginia’s suit is barred by the Anti-Injunction Act.
The Anti-Injunction Act does not apply to states under these circumstances, because Virginia’s action falls within an exception to the act that has been recognized by the Supreme Court.
Federal Government Argues: The government has the power under the Constitution’s Commerce Clause to mandate the purchase of individual health insurance.
1) The federal government’s argument is contrary to the text of the Constitution.
2) The federal government’s argument is contrary to the meaning of the words of the Commerce Clause as understood by the Founders.
3) The federal government’s argument is contrary to the historical context of the nation’s founding. When Great Britain instituted a tax on tea, the colonists’ response was to boycott and to not buy tea. Parliament had the power to regulate commerce, but even it did not attempt to force colonists to buy the taxed product.
4) The federal government’s argument is contrary to the traditional uses of the Commerce Clause. The clause has always been used to regulate economic activity; never inactivity.
5) The federal government’s argument is contrary to the precedent of the U.S. Supreme Court. The Court has set outer limits to the reaches of the Commerce Clause, including in cases such as Lopez and Morrison, saying that the clause must have principled limits, otherwise the federal government essentially would have unlimited power, rather than the limited powers enumerated in the Constitution.
Federal Government Argues = Even if refusing to buy insurance is not commerce, the government can still force people to buy health insurance using the Constitution’s Necessary and Proper Clause.
1) Since 1819, the Supreme Court has held that any use of the Necessary and Proper Clause must be consistent with both “the letter and spirit” of the Constitution. Any interpretation that would destroy the federal form of government (where federal power is limited only to those powers enumerated in the Constitution, with remaining powers reserved to the states and the people) is not allowed under that standard.
2) In May, the Supreme Court decided Comstock. The Court adopted a historical approach to the use of the Necessary and Proper Clause. Because the mandate is utterly unprecedented, it is unlikely to be upheld under a historical approach.
Federal Government Argues = Even if the government cannot win using the Commerce Clause and Necessary and Proper Clause arguments, the federal health insurance mandate can be justified under the government’s taxing authority.
1) The penalty for not buying insurance is not a tax. Congress called it a “penalty” and claimed authority to act only under the Commerce Clause. To argue otherwise now ignores what Congress actually did.
2) A penalty for inaction is not a tax of any kind known to the Constitution, when judged historically.
On July 1, 2010, oral arguments on this Motion to Dismiss were made in U.S. Federal District Court in Richmond, Virginia. Judge Henry Hudson denied the Federal Government's Motion to Dismiss — Read Details.
* * * * * * *
Dr Matt's Comment: The State of Virginia should prevail on this last point alone: a penalty for inaction is not a tax of any kind known to the Constitution.
The United States Constitution stipulates that federal taxes shall be paid according to a "capitation" (head count) among the several States — an "enumeration" that happens via U.S. Census. This means, all federal taxation happens via an apportionment as follows:
Even if the penalty for failure to purchase health insurance were a tax, and not a penalty, here's another constitutional problem that is virtually impossible for the Federal Government to overcome. All taxes laid by the Federal Government, save income taxes, must be proportional to the populations of each State.
Article I Section 9
No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
Again, the only Constitutional exception to a "capitation" Tax, proportionally paid among the several States, is the federal income tax. Since income tax is NOT a "capitation" Tax, that is why Congress passed the 16th Amendment to the Constitution:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
Because the Obama-Care tax/penalty is NOT an income tax or a "capitation" tax, proportional to State populations, this means the Obama-Care tax/penalty is NOT Constitutional — and thus NOT legal.
In the majority ruling by Justice John Roberts, he acknowledges the Constitutional Requirement that all Federal Taxes must be proportionally assess according to State population:
"Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution. Plaintiffs argue that the shared responsibility payment does not do so, citing Article I, §9, clause 4. That clause provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” This requirement means that any “direct Tax” must be apportioned so that each State pays in proportion to its population. According to the plaintiffs, if the individual mandate imposes a tax, it is a direct tax, and it is unconstitutional because Congress made no effort to apportion it among the States."
The Roberts Court ultimately ruled that the Constitutional Requirement not be followed, based upon a precedent SCOTUS case where the high court unanimously decided that "apportioning a tax would make little sense, because it would have required taxing carriage owners at dramatically different rates depending on how many carriages were in their home State."
Agreed, the taxing carriages proportional to State populations make little sense. Nevertheless, taxation at the Federal Level Requires it to be so, and again, that is precisely why the 16 Amendment was passed, so that Federal Income Tax would NOT violate Article I, §9, clause 4. That clause provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
Within a Constitutional context, the term "Police Powers" has a broader definition that goes beyond "law enforcement." The root of the word "police" is "polis" which means "city" or "state." The root "polis" is found in the word "metropolis." — metra = mother + polis = city, hence Metrapolis is the Mother City.
Police Powers refer to powers held primarily by the states: It is the capacity of a state or city to regulate general welfare, morals, health, and safety of the citizenry.
Historically, it was the States that created the Federal Government and granted specific powers by the Constitution. Congress may exercise only the eighteen 18 enumerated powers explicitly outlined in Article 1, Section 8 of the Constitution, as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
All other powers to regulate the general welfare, morals, health, and safety of the citizenry are held by the States, as specifically granted in the Tenth 10th Amendment. Given that the States created the Federal Government, and then gave it power to regulate Interstate Commerce, you can see that Decisions to originate Commerce in the first place, resides with the States.
Dr Matt's Intriguing Comment: ObamaCare is both attempting to originate/create a situation of commerce by law (forcing everyone to buy insurance), and then turning around and declaring: "we must now regulate the commerce we have originated/created, as provided by the commerce clause."
If the power to require citizens to purchase goods or services is NOT enumerated among the 18 clauses of Article 1, Section 8, of the Constitution, then the Federal Government does NOT have that power.
Article One of the United States Constitution, section 8, clause 18 is known as The Necessary and Proper Clause, and is stated thus:
The Congress shall have Power — To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Notice that Congress is empowered to make "necessary and proper" Laws specifically to carry "into Execution the foregoing Powers" — referring to the limited, enumerated powers delegated to the federal government. In other words, mandating that a person must buy health insurance needs to be justified, in the first place, by the few and defined powers listed in Article 1 Section 8 of the Constitution. So the Necessary and Proper Clause can only be invoked as one of the enumerated powers is also invoked. That is why Judge Henry Hudson ruled as he did in the Virginia Lawsuit against Obama-Care.
Judge Henry Hudson ruled that the Obama-Care mandate “is neither within the letter nor the spirit of the Constitution.” (p. 24) "If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such a provision under the Necessary and Proper Clause is equally offensive to the Constitution." (p. 19)
While the Constitution's Necessary and Proper Clause does grant Congressional powers that are not necessarily enumerated powers, those powers always directly buttress one of the enumerated power. In an 1819 Supreme Court decision, Justice John Marshall wrote that Congressional Authority via the Necessary and Proper Clause, while broad, "its authority is not unbridled." Thus Congress has only power to enact laws that are "within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."
During discussions of the proposed constitution, this clause provoked controversy: Anti-Federalists expressed concern that the clause would grant the federal government boundless power; in contrast, Federalists argued that the clause would only permit execution of power already granted by the Constitution — Alexander Hamilton defended this second interpretation in the Federalist Papers.
Arguing in Federalist No. 44, James Madison concurred with Hamilton, stating that without this clause the constitution would be a "dead letter." At the Virginia Ratifying Convention, Patrick Henry took the opposing view, saying that the clause would lead to limitless federal power that would inevitably menace civil liberties (e.g., liberty from federal powers that force citizens to purchase particular goods or services).
In the United States Constitution, the "General Welfare" provision is found in the Taxing and Spending Clause as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
The Federal Government has tried to justify the ObamaCare mandate via the "General Welfare Clause," a clause that is embedded within Congressional Taxation Power. But to invoke the General Welfare Clause, the Government must first establish that the "penalty" for not buying Health Insurance — the very "penalty" spoken of in the 2070-page behemoth called ObamaCare — is really a tax, and not a penalty.
The Federal Government has tried to justify the ObamaCare Mandate via the "General Welfare Clause," a clause that is embedded within Congressional Taxation Power. But to invoke the General Welfare Clause, the Government must first establish that the "penalty" for not buying Health Insurance — the very "penalty" spoken of in the 2070 pages behemoth called ObamaCare — is really a tax, and not a penalty.
While the Federal Government does have taxation power via Article 1 Section 8, here's the problem:
In the effort to pass ObamaCare through Congress, President Obama and the authors of Obama-Care played politics with words; trying to distance themselves from the perception of higher "taxes," the President, the Obama-Care authors, and Democrat Senators and Congressmen all called the monetary assessment for failure to purchase health insurance a penalty — and not a tax!
This is precisely why Judge Henry Hudson pointed to the historical record of "pre-enactment representations," where both the "Executive and Legislative branches" consistently called the "penalty" for failure to purchase healthcare insurance, a "penalty" and not a "tax." Thus, Federal Judge ruled that the General Welfare Clause has no force.
Saying that something is so, when it isn't so . . . doesn't change factual reality. Judge Antonin Scalia summed up the problem with the Majority Ruling this way:
For example, if a driver exceeds the speed limit and the police gives the driver a speeding ticket — on his day in Court it would be ridiculous to imagine a Judge saying, "I'm going to tax you for your speeding violation." Penalties exist as deterrent to unwanted behavior; whereas "taxes" are instruments for raising revenue. Here are two dictionary definitions:
Penalty = a punishment imposed for breaking the law.
Tax = a compulsory contribution to state revenue, levied by the government on workers' income
In the case of Obamacare, what is being taxed is . . . choosing to do nothing — hence a tax is added to the act of "doing nothing" — and now you see why Scalia quipped: "You don’t interpret a penalty to be a pig. It can’t be a pig."
NEVERTHELESS, even if the penalty were deemed a tax, there is still a huge Constitutional problem this virtually impossible to overcome: All federal taxes, save income taxes, must be assessed proportionally according to State populations — this is called a "Capitation" Tax.
Through clarifications by Thomas Jefferson and Chief Justice John Marshall, the mention of "general welfare" within the Taxing and Spending Clause was never intended to give unlimited power to the federal government.
Here's how Thomas Jefferson explained the general welfare clause: “the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum [according to pleasure] for any purpose they please; but only to pay the debts or provide for the welfare of the Union.
Jefferson's statement suggests that the "general welfare" of the people would be an aim reserved to the States via the 10th Amendment. And because the 10th Amendment reserves all rights and powers to the States, that are not enumerated to the Federal Government, thus, it is the States that would address concerns of matters of welfare of the people — whether general or specific.
According to Jefferson, the welfare of the Union, as opposed to the more specific welfare of the people [living within the Union], is the purpose for federal taxation and spending. The "Union" being the collective coalition of 50 states.
In a 1824 ruling of Gibbons v. Ogden, Chief Justice John Marshall described in an "obiter dictum" [said in passing] the following limit to the General Welfare Clause: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. . . . Congress is not empowered to tax for those purposes which are within the exclusive province of the States." In other words, "general welfare" must be defined within the enumerated powers of the federal government.
Two authors of the The Federalist papers offered interpretations of the general welfare clause:
• James Madison maintained that spending must be tied to one of the specifically enumerated federal powers — such as regulating interstate or foreign commerce, or providing for the military. Madison argued that the General Welfare Clause is not a direct grant of power, but a statement of purpose that qualifies the taxation power.
• Alexander Hamilton offered his interpretation of "general welfare" after the Constitution had been ratified. He argued that federal spending, as an enumerated power, could be done independently to benefit the general welfare — such as to assist national agricultural or educational needs. However such federal spending should be general in nature and would not favor a specific section of the country.
"The enumeration in the Constitution, of certain rights, shall not be construed
In other words, the Framers did not intend that the first eight amendments be construed to exhaust all basic and fundamental rights. The Bill of Rights is the name given to the first ten amendments to the United States Constitution. It was James Madison who introduces these amendments, thus it is significant to note Madison's words:
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
The powers not delegated to the United States by the Constitution,
Based upon how Justices Breyer, Ginsburg, Souter, and Stevens ruled in United States v. Lopez, United States v. Morrison, and Gonzales v. Raich, they interpret the Interstate Commerce Clause to have few limits, if any. These four Justices have ruled in favor of Federal Government regulation 3 out of 3 times — even when the issues were NOT directly about commerce, nor about interstate dealings.
Justices Breyer, Ginsburg, Souter, and Stevens will likely rule that requiring citizens to buy Health Insurance, is something that the Federal Government can do under the Interstate Commerce Clause — again, here Clause #3 from Article 1, Section 8, of the Constitution:
The Congress shall have power — To regulate Commerce with foreign Nations,
Justices Roberts, Alito, and Sotomayor have not made rulings on the Commerce Clause yet. If reputations for being conservative or liberal mean anything, then Roberts and Alito may support Commerce Clause Limits, and Sotomayor would broadly interpret the Commerce Clause as granting powers for the Fed to regulate. The term "broadly interpret" usually means ignoring the original intent of the Founding Fathers.
As for Justices Thomas, Scalia, and Kennedy, . . . Thomas has come down on the side of Limits to the Commerce Clause three 3 out of 3 times, with Scalia and Kennedy ruling 2 twice for Commerce Clause limitations and once for federal government regulation.
Scalia and Kennedy will likely cast the swing votes on the matter. When the Supreme Court Justices eventually rule on the Virginia Law Suit, they will do so based upon the following precedent cases that involve the Interstate Commerce Clause:
In order to drive up wheat prices during the Great Depression, the U.S. government imposed federal limits on wheat production based on acreage owned by a farmer. Filburn was growing more than the federal limits, and was ordered to destroy his crops and pay a fine -- even though he was producing the excess wheat for his own use and had no intention of selling it.
Ruling: In a unanimous decision, the court upheld the "Agricultural Adjustment Act." The intended rationale of this federal law was to stabilize the price of wheat on the national market. The court ruled that the federal government has the power to regulate interstate commerce through the Interstate Commerce Clause of the Constitution.
Majority: Jackson, joined by Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Byrnes
Alfonso Lopez, Jr. was a 12th grade student at Edison High School in San Antonio, Texas. In 1992 he carried a concealed weapon into the school. Confronted by school authorities, Lopez admitted to having the weapon and was charged with violation of the federal Gun-Free School Zones Act of 1990.
Ruling: In a 5-4 decision, the Supreme Court affirmed the decision of the Court of Appeals: While Congress has broad lawmaking authority under the Commerce Clause, the power is limited, and does not extend so far from "commerce" as to authorize the regulation of the carrying of handguns — especially when there is no evidence that carrying them affects the economy substantially.
This was the first Supreme Court case since Wickard v. Filburn to set limits to Congress's power under the Commerce Clause of the Constitution. Writing the majority opinion, Chief Justice Rehnquist identified three broad categories of activity that Congress can regulate under the Commerce Clause:
* channels of interstate commerce,
In a concurring opinion, Justice Clarence Thomas argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the entire nation.
Majority: Rehnquist, joined by O'Connor, Scalia, Kennedy, Thomas
Dissent: Breyer, joined by Stevens, Souter, Ginsburg
In 1994, the United States Congress passed the Violence Against Women Act. That fall a Virginia Tech freshman, Christy Brzonkala, was allegedly assaulted by Antonio Morrison and James Crawford, members of the school's football team. A state grand jury did not find sufficient evidence to charge either man with a crime. Brzonkala then filed suit under the Violence Against Women Act.
Ruling: In a 5-4 decision, the Supreme Court affirmed that Congress lacked authority, under either the Commerce Clause or the Fourteenth Amendment, to pass the "Violence Against Women Act." Writing for the majority, Chief Justice Rehnquist held that "the noneconomic, criminal nature of the conduct at issue was central to our decision."
Majority: Rehnquist, joined by O'Connor, Scalia, Kennedy, Thomas
Dissent: Souter, joined by Stevens, Ginsburg, Breyer
In 1996, California voters passed Proposition 215, legalizing the medical use of marijuana. California was one of eight states that allowed medicinal use of marijuana. Defendant Angel Raich used homegrown marijuana to relieve pain; her use was legal under California law, but illegal under federal law -- the 1937 Marijuana Tax Act.
Ruling: The decision was 6-3 in favor of the Federal Government's ability to regulate: Banning the growing of marijuana for medical use, to prevent or limit access to marijuana for other uses.
Majority: Stevens, joined by Kennedy, Souter, Ginsburg, Breyer.
Dissent: O'Connor, joined by Rehnquist, Thomas (Points 1 and 2 only)
“As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. . . . This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”
Again, Scalia voted in favor of Commerce Clause limitations in Lopez and in Morrison.
O'Connor's Dissenting Opinion:
"Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently."
"If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case."
Justice Rehnquist joined O'Connor's decent. Her use of the word "experiment," referred to Justice Louis Brandeis's dissenting opinion in New State Ice Co. v. Liebmann:
"Federalism promotes innovation by allowing for the possibility that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country..."
Thomas's Dissenting Opinion:
"Respondent's local cultivation and consumption of marijuana is not 'Commerce ... among the several States.' . . . Certainly no evidence from the founding suggests that 'commerce' included the mere possession of a good or some personal activity that did not involve trade or exchange for value."
"If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits."
"Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropriate state police powers under the guise of regulating commerce."
"If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the 'powers delegated' to the Federal Government are 'few and defined,' while those of the States are 'numerous and indefinite.'"
Dr Matt's Bottom Line:
In the Gonzales v. Raich, what tipped the Supreme Court decision in favor of federal regulation? It was the principle of "undercutting" a broader scheme of Interstate order. In his concurring opinion, Scalia wrote:
Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. . . . This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.”
If the Supreme Court had allowed individuals to grow marijuana at home for "personal medicinal purposes," this would have opened Pandora's Box: thus Interstate sales and use of marijuana would have become a nuisance for other States where marijuana growing and using is illegal — state anti-marijuana laws would have been "undercut."
One of the key differences between the State of Virginia's Lawsuit compared to Gonzales v. Raich, is that Marijuana use is illegal in most States and exercising one's liberty NOT to purchase Health Insurance is NOT illegal in all States — that is, until ObamaCare introduced its coercive Mandate. This means the threat of "undercutting" a broader network of State Laws is NOT a factor in the Virginia Law Suit. Expressing one's liberty to NOT purchase a good or service has never been illegal; in contrast, growing and using marijuana is illegal — that's a key difference in the two court case, thus the undercutting principle should not apply in the Virginia Lawsuit.
This means the freedom for individual citizens to NOT engage in commerce (to choose NOT to buy Health Insurance or any other good or service) is NOT regulate-able by the Federal Government via the Interstate Commerce Clause, because that choice is NOT an act of commerce and further does not involve Interstate coordination or Interstate "undercutting" — which was the tipping point for Gonzales v. Raich, according to Scalia.
Clearly a citizens choice to "do nothing" need not be coordinated and regulated between the several States by the Federal Government; therefore, the Health Care Freedom Act passed by the State of Virginia should be ruled Constitutional by the Supreme Court; and the universal mandate forcing citizens to buy health insurance, and levying a monetary penalty if they don't, should be found Unconstitutional.
The power for Governments to regulate an individual's decision to "do nothing" (to NOT buy a good or a service) is unquestionably reserved to the States by the Tenth Amendment of the United States Constitution — that is IF, as the Declaration of Independence states "by the consent of the governed," the majority of citizens want such a regulation. The people of the State of Virginia have decided — they want liberty! And if the majority of Americans want liberty as well . . . they shall have it!
Our lives begin to end the day we become
The best Health Care Reform will be Compassionate, Constitutional, and will NOT kill the Economy by driving up the National Debt. Time to take a stand and not be silent!
P.S. Clearly the Supreme Court ultimately ruled 5-4 in the opposite direction because Justice Robert's decided not only to interpret the Obamacare Law, but to re-write it; he re-wrote Obamacare by taking the term "penalty" as it is written in Obamacare itself, and then renamed it a "tax." In his dissenting opinion, Justice Clarence Thomas said this of re-writing legislation from the high court bench:
I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause. ... to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling.
Taxes have never been popular, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.
The Federalist No. 58 'defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.' We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty.
Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4.
The Government's opening brief did not even address the question -- perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. At oral argument, the most prolonged statement about the issue was just over 50 words. One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.
Article updated: August 2, 2012
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