Theodore's World: Obamacare’s Constitutional Problems Proliferating

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December 28, 2009

Obamacare’s Constitutional Problems Proliferating

Obamacare’s Constitutional Problems Proliferating

The Morning Bell

As we’ve detailed before, the very core of the Senate health plan includes an unprecedented expansion of the power of the federal government over the lives of every American. For the first time in history, every American would be forced to buy federally regulated and approved health insurance or face a $750 fine.

As the non-partisan Congressional Budget Office (CBO) wrote in 1994: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

The individual mandate and other questionable measures in the bill raise serious questions as to whether Obamacare could survive a Constitutional test:

Enumerated Powers: Article I allocates to Congress “[a]ll legislative powers herein granted,” which means that some legislative powers were intended to remain beyond Congress’s reach. The Supreme Court recognized and affirmed this fundamental principle from the earliest days of the republic, as Chief Justice Marshall famously observed:

“The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”

Nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party or purchase a good or service. Democrats have pointed to both the general welfare taxing power and the commerce clause as possible justifications for the mandate, but as a recent Heritage Legal Memorandum details, neither justification withstands scrutiny.

5th Amendment: The Fifth Amendment of the U.S. Constitution reads in part:

“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Sen. Ensign: “The Democrats’ health reform bill would require an American citizen to devote a portion of income – his or her private property – to health insurance coverage. … But, Mr. President, if a Nevadan does not want to spend his or her hard-earned income on health insurance coverage and would prefer to spend it on something else, such as rent or a car payment, this new requirement could be a “taking” of private property under the Fifth Amendment.”

Racial Discrimination: On December 10th, the United States Commission on Civil Rights sent a letter to the Senate regarding racially discriminatory provisions in Obama’s health plan. The letter reads:

“No matter how well-intentioned, utilizing racial preferences with hope of alleviating health care disparities is inadvisable both as a matter of policy and as a matter of law. … Ensuring that all Americans, regardless of race, have access to quality health care requires both creativity and hard-nosed attention to data. It also requires staying within the requirements of the Constitution. The current race-based provisions of the Senate Health Care bill display none of these qualities.”

Unequal State Treatment: Speaking to Fox News, Sen. Lindsey Graham (R-SC) described Sen. Ben Nelson’s (D-NE) deal to support Obamacare in exchange for a bailout Nebraska’s Medicaid costs as “disappointing, sleazy, unconstitutional.”

Graham is not the only one examining Cornhusker Kickback. The Attorneys General of Alabama, Colorado, Michigan, North Dakota, South Carolina, Texas and Washington state are jointly investigating the deal to see if special treatment for only one state in the nation at the expense of the other 49 violates the Constitution.

The leftist majority in the Senate is likely to vote down the DeMint/Ensign constitutional point of order, but the very objection itself will help build a record that courts will look at when determining whether or not Obamacare is unconstitutional. The Senate is not the final arbiter of whether or not the laws it passes are consistent with the United States Constitution.

That question was settled over 200 years ago in Marbury v. Madison. Although it is always difficult for the Supreme Court to thwart what is perceived to be the popular will, polling consistently shows that this legislation faces strong popular opposition. If that remains true after enactment, the majority of the Justices who are inclined to preserve the enumerated powers scheme and adhere to the original meaning of the text will have little inclination or incentive to stretch the Constitution to reach so decidedly unpopular and far-reaching a law as this one.

Wild Thing's comment........

This is a total disregard for the Constitution. It’s a discrace! And Congress and Obama are laughing at We the people. I sure hope this can be stopped somehow, maybe in the courts, but I don't have much confidence in that either.

....Thank you Mark for sending this to me.

3rd Mar.Div. 1st Battalion 9th Marine Regiment
1/9 Marines aka The Walking Dead
VN 66-67

Posted by Wild Thing at December 28, 2009 03:49 AM


They will get around it, though. They will use that the states require that you have some form of car or vehicle insurance in order to get your drivers license or even drive. That's a form of "mandating we have insurance."
I know that they believe this is right on so many levels, but it is actually wrong on so many levels.
But they don't care. It's no skin off their noses. They aren't taking the new plan.

Posted by: Lynn at December 28, 2009 08:24 AM

I have very little optimism that this SCOTUS will vote dowm these health care provisions. This President and Congress have shown a clear intent to violate constitutional law. They are on a drunken power roll and don't care about legality or popular revulsion at their new plans.

Posted by: TomR at December 28, 2009 01:09 PM

Lynn, yes and it sure ticks me off beyond
words how this socialized medicine will not
apply to those in power. We do not have Kings
and Queens in power, and they act like they are.

Posted by: Wild Thing at December 28, 2009 06:05 PM

Tom, your right they really are drunk
with power and that is very concerning.
After all our attempts to speak out
and they will not listen.

Posted by: Wild Thing at December 28, 2009 06:14 PM