The cause of freedom won the first round in the legal battle against
the Obama health law. This August 1st, U.S. District Judge Henry
Hudson denied the Obama administration's motion to dismiss Virginia's
lawsuit. Hudson said that it is far from certain Congress has the
authority to compel Americans to buy insurance and penalize those who
don't.
Virginia's
Attorney General Ken Cuccinelli explained that "this case is about
liberty, not health care." Citing the Federalist Papers and 200 years
of Supreme Court history, Cuccinelli argued that Obama health law
dismantles the constitutional structure created by the framers to
protect Americans from excessive government power.
Judge
Hudson's decision paves the way for a trial to begin in Virginia on
October 18, with appeals expected all the way to the U.S. Supreme
Court. Florida and nineteen other states are also suing to overturn
the health law. That's substantial firepower - 40% of all the states
in the U.S. Judge Roger Vinson will decide in October whether that
20-state challenge will proceed to trail. The final word - a high
court ruling - is expected in 2012, before the November presidential
election. David Rivkin, the lead attorney for the twenty other states,
says "this case is the most important of my lifetime."
If
mandatory health insurance is ruled unconstitutional, the entire health
law could fall apart. Most complex legislation states that if one part
of the law is struck down, other parts remain enforceable. But the
authors of the Obama health law removed that clause, suggesting that
the scheme won't work without compulsion. Cuccinelli predicts that if
its found to be unconstitutional, "the whole bill falls. The whole
thing."
Virginia
went one step further than challenging the Obama law in court by
enacting a state law that makes it illegal to require any resident to
purchase health insurance. Cuccinelli credits Tea Party activists with
getting the Virginia law passed, but it won solid support from both
Republican and Democratic state legislators. There is a fundamental
principle at stake.
If
the federal government can require you to buy insurance, it could force
you to buy any product to solve a national problem: a new Chevrolet to
bolster Detroit or stocks to prop up Wall Street.
Rivkin
warns "if the federal government can do this, there is no limit to what
the federal government can do." Rivkin cautions that the future of
constitutional government is at stake.
The
Obama administration claims that the Commerce Clause gives the federal
government the authority to mandate coverage. They cite two cases in
which the Supreme Court stretched the meaning of interstate commerce
like a rubber band. In Wickard v. Filburn (1942), the Court ruled that
the federal government could limit how much wheat a farmer can grow to
feed his own animals. Similarly, in Gonzalez v. Raich (2005) the Court
decided that the federal government could bar a sick person from
cultivating a mere six stalks of marijuana, even where state law allows
it. Growing something for personal use doesn't seem like interstate
commerce, said the justices, but individual decision in the aggregate
could have an impact on national markets.
The
Obama health law stretches the definition of interstate commerce even
further, to include an individual's decision NOT to do something - in
this case not to buy insurance Judge Hudson ruled that "never before
has the commerce clause and associated necessary and proper clause been
extended so far."
The
Obama administration says the requirement that everyone purchase health
insurance will solve a national problem by reducing the number of
uninsured and spreading the cost of care over a larger insurance pool.
In short, the ends justifies the means. Critics of the health law raise
constitutional objections.
So
do impartial experts. In 1993, the Congressional Budget Office warned
Congress that the mandatory insurance provision in President Clinton's
health insurance plan would be "an unprecedented form of federal
action." In 2009, the Congressional Research Office again raised doubts
about it. But that November, when a reporter asked House Speaker
Nancy Pelosi if Congress had the authority to require Americans to buy
health insurance, she responded "Are you serious?"
Each
member of Congress swears an oath to defend the U.S. Constitution. But
most of them know little about it. Cuccinelli says Congress is
"blissfully unaware that if the Constitution doesn't say the federal
government can do something, then it can't do it." The twenty-eight
beautiful words of the Tenth Amendment prohibit it.
The
one benefit of this unconstitutional health law, Cuccinelli says, is
that it is igniting a national conversation on first principles.
"People are figuring out that the way to stop the abuses of power which
seem to be crippling our economy and eating away at our liberty is by
using the Constitution against those who violate it."
A
national conversation is one thing, but only nine opinions matter in
the coming legal showdown. Nevertheless, Rivkind is "extremely
optimistic that we have an excellent chance of prevailing."
Overturning
the health law does not hinge on successfully challenging compulsory
insurance. The states are also challenging the way the Obama health law
commandeers state employees and resources to implement whatever
Congress dictates. That violates one of the fundamental safeguards
against tyranny in the Constitution. The founders divided the power to
govern between the federal government and states, and each is
sovereign. States don't have to do Congress's bidding.
Yet
the Obama health law commands states to regulate insurance premiums,
set up insurance exchanges, and enact regulations that conform to new
federal standards. Virginia "is overwhelmed with the speed and volume
of changes that we have to make to comply with this law," reported
Cuccinelli. He could have added, the expense to state taxpayers.
The
U.S. Constitution permits none of this. In Printz v. United States
(1997), the Supreme Court struck down a provision of the Brady Handgun
Violence Prevention Act that would have compelled state officials to
perform background checks on people buying firearms. The Court ruled
that "allowing the federal government to commandeer state officers in
the implementation of federal law would . . . dilute the Constitution's
structure of dual sovereignty."
That
is a principle that the Obama administration articulates only when it's
convenient, for example to protect illegal aliens. The administration
tells Arizona state officials not to enforce immigration laws -
that's for the federal government to handle. But states are burdened
with implementing new federal insurance regulations.
Citing
federalism, the twenty states are also challenging a third aspect of
the Obama health law, its "massive expansion of Medicaid" that state
taxpayers cannot afford.
President
Obama promised to solve the problem of the uninsured by making
insurance affordable. That's not what the law does. The chief way the
law increases coverage is by adding 18 million more people to the
Medicaid, nearly doubling it. . State taxpayers eventually will have to
pay that tab.
States
always have decided who is eligible for Medicaid and what benefits they
can get,, depending on what state budgets can handle. The federal
government has reimbursed states for roughly half the cost.
The
Obama health law strips the states of control over Medicaid. It
imposes a one-size fits all Medicaid benefit package (the same benefits
people paying for private plans will get) , raises the income ceiling
to be eligible for Medicaid and makes all states open up their programs ,
and bars states from using an asset test to limit eligibility. Yet the
federal government pays the full tab for only the first two years.
After 2016 states will have to raise taxes or cut other government
services such as education to come up with billions of dollars extra
needed for Medicaid.
The
twenty suing states claim the Obama health law shifts "costs, mandates,
and responsibilities to the states, coerces and commandeers their
resources, and renders them arms of the federal government in violation
of the Constitution's . . . federalist structure."
Federal
judges are likely to see it that way too. The U.S. Supreme Court has
ruled that Medicaid is a "cooperative endeavor" between two sovereigns,
the federal government and the states. (Harris v. McRae, 1980). That
means neither partner can unilaterally dictate the terms. The Obama
health law says "do it this way or drop out of Medicaid." That's "an
unpalatable choice," explains Rivkin. Hospitals and nursing homes are so
dependent on federal Medicaid revenues that if a state dropped out, it
would mean no less than "the collapse of healthcare delivery" in that
state. The high court has ruled that Congress can used federal funding
as a tool to motivate states to do certain things, but not to the
"point at which pressure turns into coercion." In other words, no
arm-twisting Chicago style. That is what the new Medicaid terms seem to
do.
The
last word on the constitutionality of Obamacare is many months off. If
the states prevail at trial later this fall, they will ask the federal
government to declare the health law unenforceable until the Supreme
Court rules. That will stop the clock and relieve the states, small
businesses and individuals from having to spend huge sums of money
preparing for a law that tramples the U.S. Constitution and may never
be put into effect.
In 2010, ordinary citizens will have to stand up for their constitutional rights, just as the Schechter brothers did 75 years ago. Members of Congress swear to uphold the Constitution, but it appears many are ignorant of what it says.
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