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12.14.2010 1


By Robert Romano

Obama Constitution“The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers,” wrote Federal District Judge Henry Hudson in his decision invalidating the individual mandate to purchase health insurance imposed by ObamaCare.

Such a declaration should shock regular Americans who respect the boundaries imposed by constitutional, limited government. Even more so because Judge Hudson is writing about what the now-enacted ObamaCare law does.

Hudson’s critique is a bold recognition of what the individual mandate really does — and just how unfounded it really is in our history. As Hudson articulated, the mandate “forges new ground and extends the Commerce Clause powers beyond its current high water mark.” In other words, forcing individuals to purchase health insurance goes above and beyond anything Congress has attempted before under the Constitution.

In fact, the Administration could not cite a single example where the federal government had ever forced individuals to purchase anything, let alone a court case that upheld such a law.

That should give readers an idea of just what Congress was busy plotting behind closed doors while a majority of Americans, including Speaker-elect John Boehner, were offering a resounding “Hell no!” against the enactment of ObamaCare.

Health and Human Services Secretary Kathleen Sebelius argued that the decision not to purchase health care, when taken collectively, substantially affects underwriting in the national insurance market. That affects interstate commerce, and thus can be regulated under the Constitution’s Commerce Clause.

Put another way, Sebelius was essentially stating that because forcing everyone to buy health insurance would make health insurance more widely used, affecting commerce in a manner the government deems desirable, it is constitutional. Sure. So would any mandate to purchase goods and services — ranging from cars to houses — have the impact of increasing economic output in those sectors the government prefers. But that does not make such mandates constitutional.

If that were true, there would be nothing that Congress could not compel the purchase of. The question, of course, is not whether government thinks the mandates to purchase goods and services are a good idea, but whether it has the power in the first place to regulate a non-activity. After all, commerce is an act that first and foremost, requires activity. And it requires choice. Deciding not to purchase something, in this case not to buy health insurance, is a decision not to engage in commerce. It is passive.

Fortunately for the American people, Judge Hudson saw through the Administration’s plot. “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” Hudson wrote, adding, “In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.”

Moreover, because the mandate was not grounded in the lawful application of the Commerce Clause, it too could not be sustained under the Necessary and Proper Clause, as the Administration maintained. Because, Hudson writes, “This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power.” So, the Administration’s argument that the mandate was “necessary” to help finance the legislation could not be sustained, because the mandate itself is unconstitutional. It matters little if the government saw utility in the provision.

Then, the question turned to whether the fine applied to individuals that failed to buy insurance was a penalty, or as the Administration attempted to argue, a tax that would fall under the Congress’ constitutional taxing power. Except, under the law, it was explicitly defined as a “penalty.” It was only after adoption when the Administration saw the legal flaw of the penalty that it decided to call it a “tax.”

Hudson wrote, “The use of the term ‘tax’ appears to be a tactic to achieve enlarged regulatory license,” calling the post-hoc rationalization for the provision nothing more than a “transparent afterthought.”

Overall, Hudson’s decision, and the courage of Virginia Attorney General Ken Cuccinelli and others to fight this battle, have given the American people a chance — perhaps a last chance — to turn back the gross expansion of federal power under the Commerce Clause.

Americans for Limited Government President Bill Wilson called the mandate a “mutation and destruction of the Constitution premised on the Administration’s flexible understanding of the Commerce Clause.”

“One of the outcomes of ObamaCare may be that the Supreme Court strikes down the most expansive reading of the Commerce Clause ever. If so, that may be the only positive that comes out of this dark chapter in American history,” Wilson said.

Wilson added that should the Supreme Court overturn ObamaCare because of the individual mandate, “the decision will be of lasting importance, and could mark a turning point in rolling back the vast powers the federal government has assumed for itself under the guise of the legitimate exercise of the Commerce Clause.”

That, indeed, would be positive, but it should never have gotten this far. After all, the Supreme Court is still just one decision away from, in Hudson’s words, “invit[ing] [the] unbridled exercise of federal police powers” if it rules to uphold the mandate. It is still up to Congress to work to repeal ObamaCare, which has turned out to be the unconstitutional abomination opponents warned of from the get go.

Robert Romano is the Senior Editor of Americans for Limited Government.

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