A Different Take On The Constitutionality Of ObamaCare

The Daily Caller posted an article today about changes made to ObamaCare by Congress. The article reminds us that in 2017, the Republican-majority Congress did not have the votes to repeal the ACA, but did set the individual mandate penalty at zero. They didn’t repeal it, but they took the teeth out of it.

The article then reminds of the Supreme Court’s decision on ObamaCare:

In 2012, the five conservative justices on the United States Supreme Court (including Chief justice John Roberts) held that key portions of the Affordable Care Act (ACA) exceeded Congress’s constitutional authority under the Commerce Clause. But, Chief Justice Roberts then joined the four liberal justices on the Court in upholding the ACA as a tax under Congress’s taxing power because it generated revenue for the federal government.

The question then becomes, “If ObamaCare is no longer generating revenue, is it still a tax?’ If it is no longer a tax, does it still fall under the Commerce Clause?”

The article states:

A recent op-ed at The Federalist claims that striking down the ACA would be “judicial activism.” The article doesn’t defend the ACA as constitutional, but argues that conservatives shouldn’t ask “unelected judges to do what elected members of Congress took great pains to avoid.”

Such a broad view of “judicial activism” would render virtually any judicial review out of bounds. More importantly, it is contrary to the very system of checks and balances set up by the Founders in the Constitution. There is no Constitutional duty to persuade a majority of Congress to stop violating the Constitution—that’s what makes it a written constitution in the first place.

The article concludes:

And there is the rub. Judicial activism, rightly understood, is when a court tries to exercise the legislative function — i.e., when a court writes laws instead of saying what the law is. But asking courts to carve out the unconstitutional provisions from laws is exactly that. Advocating for severability asks the judicial branch to judge the law Congress should have written, not the one it did. A more restrained approach would be to strike down the whole law and let Congress decide whether it wants to pass the law again without the unconstitutional provisions included.

An old saying goes something like: “When you mix a cup of sewage in a barrel of wine, you end up with a barrel of sewage and have to throw the whole thing out.” To extend the metaphor, courts shouldn’t be in the business of sifting through a law to pick the sewage out of the wine, they should throw the whole thing out. Striking down unconstitutional laws is not judicial activism, and it is well within the role of the judiciary to strike the entire ACA as such.

It is definitely time to get rid of the barrel of sewage!

The Supreme Court Has Spoken

About an hour ago, the Supreme Court released its decision on the Patient Protection and Affordable Care Act. My source for this article is an Ed Morrissey article at Hot Air. The comments on the article are as interesting as the article. Some of the comments:

You haven’t purchased a GM vehicle, Comrade. Better get moving on that. You don’t want to get taxed, do you?” — BHO

Can new taxes be passed with just a reconciliation vote?  talkingpoints on June 28, 2012 at 10:47 AM

In my opinion: with the Medicaid expansion clause, if States decide not to expand Medicaid, HHS cannot take their Medicaid funds away. Hence, if half the country doesn’t choose to participate, the Feds can’t force them to. I believe this will effectively kill the bill.

Keep calm and vote Romney.

At this time, the stock market has fallen about 150 points since the announcement. Most Americans have 401k plans that have just been negatively impacted by this decision.

Ed Morrissey reports:

After months and months of focusing on Anthony Kennedy as the weak link in the conservative chain at the Supreme Court, it turns out that Chief Justice John Roberts was the one the Right needed to fear.  With the more centrist Kennedy dissenting, Roberts signed off on the individual mandate in ObamaCare, not as part of Congress’ power under the Commerce Clause, or even the ludicrous reference to the “Good and Welfare Clause” from some Democrats, but from the more mundane and substantial power to tax.  The opinion actually ruled that the mandate violates the Commerce Clause, but as a tax that no longer matters.

The only good thing about this decision is that it will energize those Americans who believe in individual rights. This now becomes a major election issue with the debate being between those people who still believe they are entitled to a free lunch and those people who realize that someone always has to pay for a free lunch.

Upholding the law means that all the lawsuits concerning the freedom to practice religion will go forward. Some of these cases will probably also wind up at the Supreme Court. It will be interesting to see what happens next.

The future of America will depend on what happens in November. Vote!

 

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Yesterday At The Supreme Court

Paul Clement was the lawyer arguing at the Supreme Court on behalf of Florida and the other states who are challenging Obamacare.

I have listened to a large part of his argument against the idea that the Commerce Clause allows the government to force people into commerce in order the regulate them rather than to regulate the people who are already engaging in commerce. I believe that Obamacare as it is written is not constitutional, but we shall see what the court decides.

The discussion I have heard is that if Obamacare is found constitutional, the idea that our government is a government of enumerated limited powers is over. If the individual mandate part of Obamacare is found constitutional, be ready to have the government require you to join a gym, eat certain foods, purchase a car, etc.

We will have to wait until June to know what the outcome of this case will be, but hopefully Obamacare will die with the individual mandate.

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Can The Government Force Me To Buy Broccoli ? Do I Have To Eat It If I Buy It ?

In a nutshell, that is my reaction to Obamacare. I am being forced to buy something simply because I am a live person. The only way I can avoid buying this or paying a fine is to be a dead person. I really don’t like the choice involved.

Yesterday Michael Walsh at The Corner at National Review Online posted a short article that I believe sums up the entire healthcare debate.

Mr. Walsh asks if Obamacare is really about healthcare:

For if it’s about “health care,” aren’t there a myriad of ways in which the system could be improved without a “comprehensive” top-down solution? At a time of extreme economic dislocation, was there a nationwide clamor to make “health care” the top priority of the new administration?

Or is it really about the exercise of raw governmental power, to teach the citizenry an object lesson about the coming brave new world, one that surely will get even worse once Obama is safely past the shoals of his last election? 

Can the government force you to buy something just because you exist (even if it is for the ‘public good’)?

One of the most logical arguments I have heard against Obamacare is that it violates the basic concept of a contract. A contract is an agreement entered into voluntarily by two or more people. If the agreement is not voluntary, it is no longer a contract. Hopefully, the eventual decision of the Supreme Court will recognize the right of Americans to enter into contracts voluntarily. I happen to like broccoli, but I don’t want anyone forcing me to buy it or eat it.

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Hidden In The Small Print…

Big Government is reporting today on some aspects of ObamaCare that I don’t think any of us had considered. Your cell phone is about to become a medical device (yes, you read that right) and your own stem cells are drugs. Good grief!

The article reports:

And because your phone has on it the two dollar blood pressure app – the Obama FDA asserts that they can thusly regulate your entire phone.  Because according to them that one app has turned your phone into a “medical device.”

Under the FDA’s expansive parameters, almost any device on which you do almost anything regarding your health – your smartphones, your tablets, your desktop and laptop computers – will be regulated.

Did you use your smartphone/tablet/computer camera or microphone to monitor something health-related?  It just became an Obama FDA-regulated medical device.

Did you save your health care data on any smartphone/tablet/computer? That too is now regulated.

Did you send an email containing any health care information to your doctor?  The device from which you sent said missive is too now regulated.

…Obama’s FDA is concurrently asserting that the adult stem cells in your body are a “drug” – and that therefore your body is now government regulatory property.

In another outrageous power-grab, FDA says your own stem cells are drugs—and stem cell therapy is interstate commerce because it affects the bottom line of FDA-approved drugs in other states!…

We have entered the Twilight Zone. If you care to leave the zone, please vote Republican in November.

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