ObamaCare and the Constitution

Lance McMillian's picture

The Framers of the Constitution created a federal government of limited, enumerated powers. In the words of James Madison, “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.”

Throughout the country, federal courts are presently considering whether this original design has any remaining viability. The question before these courts asks: Is Obamacare constitutional?

Regulation of economic transactions, of course, is unremarkable, and Article I of the Constitution gives Congress the power “to regulate Commerce ... among the several States.”

Obamacare, however, goes far beyond garden-variety regulation. The law’s centerpiece, the much-maligned individual mandate, compels every American – at the risk of criminal penalties – to purchase health insurance from an insurance company. And therein lies the rub.

It is one thing to regulate all those who choose to engage in an economic activity; it is another thing entirely to force an individual to engage in a particular economic activity in the first place against that person’s will.

Such a shift dramatically alters the nature of congressional power under Article I. The power to regulate something already in existence becomes the power to compel something into existence.

Even the laws we typically conceptualize as mandatory are different than the individual mandate in critical respects. Yes, everyone must pay taxes, but only if they choose to earn an income. Yes, everyone must buy auto insurance, but only if they choose to drive. Yes, criminal law details a whole host of things we cannot do, but it does not say that there are things we have to do.

Obamacare, on the other hand, directs this: Simply by being alive, each of us must do business with an insurance company. This total deprivation of choice is unprecedented in American law and constitutes a form of coercion that poses a significant threat to individual liberty.

Allowing the federal government to exercise this type of unconstrained power removes any pretense that the Constitution limits the reach of Congress in any real way. Words have meaning, and danger looms for all Americans when politicians and judges cast aside the plain meaning of words for short-term, partisan ends.

If the text of the Constitution can blithely be ignored in this way, then it follows that placing faith in that document to safeguard our civil liberties is a grave miscalculation. Our rights devolve to only those that the Supreme Court allows us to have. When this happens, the rule of law gives way to the shifting rule of five-justice majorities on the Court.

And that brings us back to Obamacare. The highly politicized manner that accompanied its passage likely dooms any effort to reach consensus on its constitutionality as the merits of the law have long ceased to matter.

Still, there is hope. Despite the many differences between liberals and conservatives, the two sides do share a distrust of government overreach that sometimes – albeit all too infrequently – overlaps. Perhaps the vast tentacles of Obamacare can awaken this common fear to produce an unexpected unity.

The chief discomforts with the new healthcare law need not – and indeed, will not – be the same. For the conservative, allowing Obamacare to stand would remove any constitutional constraint on centralized regulation as well as obliterating any pretense of state autonomy.

For the liberal, permitting government the power to mandate that every person enter into a contractual relationship with insurance companies gives enormous power to big business at the expense of individuals, especially those presently without insurance on the lower end of the economic ladder.

While the sources of uneasiness in these respective critiques differ and reflect the competing ideological concerns in the liberal and conservative worldviews, both analyses reach the same conclusion: this law goes too far.

The Constitution ultimately protects all of us from the strong hand of government. While we may disagree over the exact contours of these constitutional safeguards, Americans of all political stripes agree that (a) there should be meaningful limits on government and (b) the Constitution should supply these limits.

The individual mandate, however, mocks both of these baseline premises. A federal government that can force its citizens to engage in particular activities is a government unrestrained by the words of the Constitution. Power and politics – not the rule of law – become the order of the day.

Lance McMillian is a Fayette County resident and law professor at Atlanta’s John Marshall Law School.]

Davids mom
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Oou
Quote:

how then is the cost of the uninsured was therefore bankrupting American and not the AHCA?

AHCA goal is to prevent health problems. Preventive medicine means fewer visits to hospitals. The high cost involves what hospitals are charging! I hope you are fortunate not to have a current hospital bill. . . but if you have a chance to look at one, check the cost of a band aid. While hospital costs are brought within reason, we need to take steps to make our citizens healthier. Numbers don"t tell the entire story, that's why we have analysts.

Observerofu
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Numbers don't lie DM analyst and bloggers do

1+1 will always equal 2 no matter how you might "analyze" it.

Now you can say it equals 5 but you still would be wrong.

This Administration spent a Trillion dollars to cover less than 10 million people with an associated cost of under $1 Billion dollars.

Do you know how many Billions are in a Trillion DM? 1000... We could have given these people a Billion dollars a year and saved money.

Davids mom
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oou

1 + 1 = 2 in base 10. Thanks for the intelligent clarification. What does it equal in base 2?

NUK_1
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"Preventative medicine" has failed to lower costs so far

There are studies that have been done by non-partisan groups that "preventative medicine" in many cases actually raises health care costs by sending MORE people to hospitals for care they may not need. Here is most often cited one that was done by the New England Journal of Medicine:

http://www.nejm.org/doi/full/10.1056/NEJMp0708558

People often forget that "preventative medicine" became a big idea when health care shifted strongly to HMO's a while back and HMO's touted this as a "great thing" with low or no co-pays. Instead, what it brought was 15 minute DR appointments in a cattle call waiting room that can be totally unnecessary or an avenue for writing endless amounts of prescriptions for any ailment real or imagined, as well as sending someone elsewhere for "tests" after a few minute conversation.

Davids mom
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Nuk

I understand what you're pointing out. Where are the studies of the cost of drugs, hospital equipment, hospital maintenance, hospital administration, etc., etc., etc.? Insurance pays what the hospital charges. The days when doctors became millionaires are over (except for specialists, especially plastic surgeons). The doctors I know are working their butts off, seeing an inordinate amount of patients daily to maintain a 'life style'. (And today's young doctors don't have the biggest car or house in the neighborhood). In the war against anything Obama, let's don't belittle the attempt to improve the health of American citizens. Today, there are so many diseases if identified early that can be cured. Most important, through appropriate health care, many illnesses can be prevented. With health care available to citizens, we will be a stronger nation. I feel the legality of making not having insurance a criminal act will be handled in the courts. Improving health care in America is important. Improving the health care act is wisdom, repealing it is politics. A lot of money was spent on the dispensation of the polio vaccine. We don't have to spend that money today. Hopefully, someday they will be able to say that about cancer.

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OofU, it had to be mandated

OofU, it had to be mandated to increase the size of the risk pool and lower the cost per unit. This was a prerequisite of the private insurance companies before negotiations even began.

The parliamentary tricks you’re complaining about were the same ones used by Republicans to pass the “Nation Busting Bush Tax Cuts.”

I hear a lot of complaining about AHCA but most of it is generated by paid insurance lobbyist and think tanks, fed though Faux News and right wing Talk, Talk, Talk Radio personalities, to Astroturf ‘angry mob’ organizations like the TeaParty, eh?

Since you’re the answer man about AHCA, could you tell us how many American lives it might save?

Observerofu
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About as many lives if we can divert that Astroid

that is going to hit someday.

Speaking talking points while complaining about talking points is still talking points Gort.

Gort
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OofU, wow, that could be lots

OofU, wow, that could be lots of people, millions in fact. If AHCA can save that many lives how can you be so against it?

Are you anti-social? 8 - )

PTC Observer
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Cyclist - Great

answer and I would add that we simply don't need government in healthcare, it has pretty much screwed up everything it has touched. Tell me one program the government has started that hasn't runway with more money than was projected on the front end. Not one exists.

Finally, why should we pay for a service we don't want? We shouldn't in a free society.

carbonunit52
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PTCO: cost overruns are quite common
Quote:

Tell me one program the government has started that hasn't runway with more money than was projected on the front end. Not one exists.

Not just in government run projects, but in 99% of projects, from a kitchen remodel to a brand spanking new private enterprise filthy coal burning electricity generating plant. Those without minds of the liberal persuasion take minor details and extrapolate them until they are totally out of proportion to reality.

PTC Observer
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Carbon - Cost over

Cost over runs when they come out of your pocket for projects you want are fine with me, you choose the project, the contractor, and make the decision to finish the job or not.

Government does run this way, it chooses the project (against your will), it chooses the contractor, and if the job is running over budget it steals what it needs from you the taxpayer or their children using debt.

Can you distinguished these two quite different scenarios?

In a free market, unlike government, you take care of your money because it's yours, when it is "free" to the government it spends it like drunken sailors.

carbonunit52
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Distinguishing monies: mine, all mine part 2
Quote:

In a free market, unlike government, you take care of your money because it's yours, when it is "free" to the government it spends it like drunken sailors.

So, it seems to the carbonunit that "wasted money", such as stimulus funded unemployment compensations, become sanctified when they are spent and deposited in a "producers" bank account, and the flow can rightously stop there.

kevink
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Observer, a few things logically follow......

"we simply don't need government in healthcare, it has pretty much screwed up everything it has touched."

It follows that you do not like The United States Armed Services, which are 100% a government operation.

I am sure that you will support the ending of social security and Medicare and Medicaid, and The Department of Health and Human Services.

The FDA should stop snooping through the kitchens of local restaurants immediately, right?

What's a little peanut-born salmonila between friends?

If kids become orphaned? Good luck. If they have unfit, abusive parents? Don't expect any pesky government agency to come to the rescue. That would cost tax payers and job creators money.

The anti-government rhetoric gets bizarre sometimes. Especially when people think large insurance companies and big pharma have their best interests at heart.

ps. I'm sure that when you drive to Atlanta you use the State Roads in order to avoid the federally funded Interstate.

PTC Observer
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kevink - No

No I like the military, it is necessary for the defense of the country from foreign invasion by socialist "visionaries" like Hitler, Stalin, Tojo, etc.

However, with that said the military like everything else the government runs is run poorly, that's why it costs so much.

I support the ending of all entitlement programs that transfers wealth from one group of people to another group of people. Citizen's should keep their money and use it the way they want to use it.

Roads, should all be toll roads or paid for through gasoline taxes.

"Safety" departments like the FDA should be run by private enterprise through voluntary associations to avoid extra costs brought on by lawsuits. There are still a few examples of how this now works by looking at United Laboratories (UL) and National Sanitation Foundation (NSF), there are many more.

Hope this answers your concerns about how freedom of choice works.

Ninja Guy
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PTCO, In the Free Market

you pay for services you don't want all the time! You don't play golf, but if you stay at the Marriott with a golf course, you are paying for it! Do you demand that Marriott take the cost of the golf course off your bill. If you don't use the shampoo, soap, and coffee machine in the room, do you raise a stink in the lobby and demand that it be taken off your bill because you don't want it or didn't use it? If you use only one towel, do you make them adjust the bill because there were four in the room? Or, do you double up with Cal at the Motel Six when you are traveling? Do you demand that your meals at McDonalds be discounted because you don't use the play area? You are not the only person on the planet! The rest of us are not here to serve your distorted view of reality! After the bogus debt ceiling issue fades and the Rapture does not happen, what doomsday scenario will you latch on to next? The mother ship is waiting for you at K-Mart parking lot! Howard Ruff and Gary North will be on it!

Braves lose, but gain a great center fielder and lead-off man! Dump SS Gonzalez next!

PTC Observer
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Ninja - I think I see

that you don't accept the concept of free choice. I can decide where I want to stay, even a Motel Six.

The problem with you Ninja is you can't accept the responsibility of free choice, you simply would like the government to make choices for you.

Bet your a real mom's boy aren't you Ninja?

Ninja Guy
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PTCO, Where You Live In The

world is free choice too, right? There are plenty of places you could live and not pay any taxes at all! However, you want everything to change to fit your utopian vision! Mao tried that once too! You want to force the rest of us to live under your low-tax dirty linen Motel Six model! Government is a function of the market! You get what you vote for! I used to be a mom's boy, but she is long gone from this world, Dad too!. RIP!

Braves Going to Beat Down the Nats Tonight!

PTC Observer
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Ninja - On

On the contrary I don't want anyone to live under someone that has a Utopian vision, I think we can reserve this imaginary feat to the statists, or those that support statism, like you.

Being a mama's boy is a frame of mind Ninja, not a slam on your departed mom. I suppose though you need someone to make your decisions for you or you wouldn't want government to do it.

On the other hand maybe there is simply self-interest involved in your desire to keep the state growing. "Just about right", I think this was your Goldilocks expression.

If so, I hope you are looking for that job in private industry, because you're about to be RIF'd from the government dole pal. Then you can actually feel the pain of the worker class over the last few years.

Ninja Guy
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PTCO, I Am Too Much

to handle for employ by any organization, public or private. The Ninja flies strictly solo! I have too many kids to ever retire! Our form of government and level of intervention thereby is a product of the market principles you espouse but do not really believe in--the coming cutbacks included. Got that doomsday shelter step up for wireless Internet yet? You and OOFU will have much to discuss barricaded in there while civilization collapses next week!

Braves trailing 2-1, but unlike PTCO I have hope!

Vote No On Motel Six for PTC!

PTC Observer
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Ninja - Finally

you're correct about something, "I am too much".

Ninja, the world is not going to collapse next week, get a grip pal!!

I think David Boaz said it best when talking about people like you Ninja:

"There are still plenty of people seeking to take our liberty, to force us into collectivist schemes, to promise us security or handouts in return for our freedom, or to impose their agendas on the rest of us."

Get a job Ninja, a real job. You'll need one.

Ninja Guy
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PTCO, The Only Real Job

is the one you give yourself! I am the most rugged individualist in PTC! David Boaz is one of those libertarian drug legalizing guys! The 60s are over! The real Cato would not share the same continent with him!

Braves Lose! Start a Win Streak Tomorrow!

Vote No On Motel Six For PTC!

Ninja Guy
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Rolling Stone Gathers No Moss

Tired of reading the same old stuff on the Citizen and its sister publication the Wall Street Journal, I flipped over to an oldie but goody--Rolling Stone! Here is a good article about the Tea Party faithful. Entertaining if nothing else!

http://www.rollingstone.com/politics/news/matt-taibbi-on-the-tea-party-2...

Bring Back the 60s But Without Tiny Tim!

Ninja Guy
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Rand Paul Is A Phony And UR2!

Gosh, you would think a stalwart of the Teaparty would should at least a bit of integrity, at least in public! This is from last year, but I think it sums things up pretty well!.

From various news services:

"But on Thursday evening, the ophthalmologist from Bowling Green said there was one thing he would not cut: Medicare physician payments.

In fact, Paul — who says 50% of his patients are on Medicare — wants to end cuts to physician payments under a program now in place called the sustained growth rate, or SGR. “Physicians should be allowed to make a comfortable living,” he told a gathering of neighbors in the back yard of Chris and Linda Wakild, just behind the 10th hole of a golf course."

Vote No On Motel Six in PTC!

Observerofu
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Hey wearer of black pj's.

Why would you want the Physicians payments cut? Don't you realize they will simply take less patients.

But wait not in your world. You would simply have the Government force them to take less pay.

Never mind.

BHH
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Ninja where is your head?

You forgot "go Braves" or Hawks or whoever is playing.

Is there no sports event this week?

I can't believe it if there's not.

Ninja Guy
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BHH, Yes Braves vs. Nats Tonight

but I was saving that up for posts later today! The early morning bloggers are more into politics than sports, and I try to meet the needs of all my readers!

Braves vs. Nats! Uggla homers twice last night, but Bravos still lose! Is Freddi's job on the line?

Cyclist
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PTC Observer

I would like to see how the "Supremes" will view the commerce clause thingy. Anyways, it's off to Tulsa tomorrow.

BTW, that clock is still ticking in the background.

roundabout
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Ticking Clock

There has never been a ticking clock.

The compromise was agreed to weeks ago by Joe Biden and Boehner and Reid.

What this last hour thing does is allow all to say, "it smells" but it is the last hour and I can't let my country down!

The TEAS get to say, "boy, did we show them."

The republicans get to say, "look what we cut."

The Democrats get to say, "this stupid stuff won't be done again in an election year!"

The government may be disoriented but they as a group are not as dumb as the public.

PTC Observer
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Cyclist - Safe

flight pal.

Cyclist
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PTC Observer

Thanks!!!!