feature-2011-09-obamacare

Obamacare: Constitutionally Infirm

September 2, 2011 | by | Topic: The American Story, The LawPrint Print

A three-judge panel of the U.S. Eleventh Circuit Court of Appeals has ruled that the key feature of the Patient Protection and Affordable Care Act, better known by many as “Obamacare,” is unconstitutional. The “individual mandate” portion of the legislation—a provision which requires all Americans to purchase health insurance or suffer a monetary penalty—was found by the panel in a 2-1 decision to be constitutionally infirm. The two judges who wrote the opinion, one a George H. W. Bush appointee and the other a Clinton appointee, used 207 pages to analyze the legislative intent of the enactment, to explore the existing pertinent case law, and to carefully consider all the possible arguments for the individual mandate offered by both sides.

In the end, their conclusion was that the question before them was “whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives.” The answer they gave was a resounding “no,” to which every American should respond with an “amen.”

The opinion reminds us that the Constitution creates a federal government of numbered or enumerated powers. When Congress acts, it must stay within the boundaries of those powers. In other words, the federal government is not unlimited; it is limited. It is a government with considerable power, but it is also one whose actions must conform to the confines of the powers set out in Article I, section 8 of the Constitution. If Congress exceeds those powers, it is acting unconstitutionally and the Supreme Court must rein it in. Chief Judge Dubina and Judge Hull have done exactly that.

The Obama administration argued for the constitutionality of compulsory health insurance by asserting, among other things, that Congress has broad power to “regulate interstate commerce.” True, said Judges Dubina and Hull, the definition of interstate commerce has been expanded, especially from the New Deal to the present. However, they add, what the Obama administration is claiming is “unprecedented” and “breathtaking in its expansive scope.” If commercial activity is already occurring, it is very likely that Congress can regulate it, but this is quite different from compelling “individuals to enter into commerce” by forcing them to purchase health insurance and then penalizing them if they fail to do so. As the opinion says: “Every day, Americans decide what products to buy, where to invest and save, and how to pay for future contingencies such as their retirement, their children’s education and their health care. The government [Obama administration] contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes.”

That is exactly the issue. Will Americans retain the right to decide how much and where they will spend their money for health care? Or will they allow the Leviathan State to usurp that right? If the latter, then they should not be surprised to find that Congress’ voracious appetite for control of our daily lives will not be satisfied with health care, but will seek to dictate our choices of schooling, food products, energy, housing, and wearing apparel. Again, as the opinion warns: “The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore, Congress may regulate them at every point of their life.” Exactly so.

Because the Sixth Circuit Court of Appeals, by contrast, has held in favor of the constitutionality of compulsory health insurance, thus creating a conflict among the Circuits, this case will undoubtedly be heard by the Supreme Court. There will be no more important decision on the Supreme Court’s docket, for the outcome will determine whether we will remain a nation with a limited government dedicated to the preservation of liberty or become a nanny-state with the federal government as our nurse.

John A. Sparks

John A. Sparks

Dr. John A. Sparks is the retired dean of the Calderwood School of Arts & Letters, Grove City College, Grove City, Pa., and teaches constitutional history and business Law on a part-time basis. He is a member of the State Bars of Michigan and Pennsylvania and is a fellow for educational policy for The Center for Vision & Values at Grove City College.

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